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" THE BASIS QF OUR POLITICAL SYSTEMS IS THE 
RIGHT OF THE PEOPLE TO MAKE AND ALTER THEIR 
CONSTITUTIONS OF GOVERNMENT."— Washington. 



See also the Constitution of Rhode Island, Art. 1, Sec. I. 



CONSTITUTION -MAKING 
IN RHODE ISLAND 



AMASA M. EATON, A.M., LLB 



This contribution to the discussion concerning '• Constitution-making in Rhode 
Island" is published by the RHODE ISLAND CONSTITUTIONAL LEAGUE; but 
the League, though earnestly concurring in the arguments advanced as to the proper 
and legal way to make a new constitution for our State, does not hold itself 
responsible for, nor committed to, every view or conclusion therein expressed. 



PROVIDENCE, R. 
1899 









57921 



PRESS OF 

L. FREEMAN & SON! 

PROVIDENCE, R. I. 



^■^ -J 

to 



> Page. 

xix. Preface. 



CONTENTS. 



xxi. Petition to general assembly. 

1. Art. I, Sec. 1, of constitution of Rhode Island, cited and commented on. 
The right therein reserved (of the people, to make and alter their constitu- 
tion of government) exists, even if not stated in the constitution. 

But it is explicitly stated in our constitution as the very rights of all rights. 
The constitution is silent as to how this right shall be carried into effect. 
The rule is that statements of rights shall be broadly construed and carried 
into effect by appropriate legislation. 

2. An appropriate and common means to this end is a call for a convention by 

the legislature, when necessity arises. 

The general assembly has such implied power and should exercise it when 
the necessity occurs. 

It is common knowledge that public opinion has called for years for a new 
constitution. 

The general assembly has officially recognized such necessity by a resolution. 

The right expressly stated in Art. I, Sec. 1, cannot be limited by an impli- 
cation in another article. 

3. Art. XIII does not therefore limit this right. 

A construction to be favored that will give effect to both articles. 

Instead of a construction that enlarges the operation of one to the exclusion 

of the other. 
The power to call a constitutional convention has been frequently exercised 

by the general assembly. 

4. Although these calls were before the adoption of the constitution of 1842, 

the general assembly still has the same power. 
Because Art. XIII is not exclusive: 

That it is not exclusive is shown because it relates only to amendments 
initiated by the general assembly, while Art. I, Sec. 1, relates to the 
right of another party (the people) to do another thing (to make and 
alter their constitution of government). 
The framers of the constitution, aware of the fact that the general assembly 
had called constitutional conventions repeatedly, took it for granted it 
still could do so, especially in view of Art. lY, Sec. 10. 
The constitution of 1842 was the work of a majority. 

A majority now, as then, can make and alter their constitution of govern- 
ment. 

5. A statement of a way in which an agent of the people can propose amend- 

ments is no limitation of the expressly stated power of the principal, the 
people. 



IV 

Page. 

5. The power of the general assembly to propose amendments is extraneous 

and in addition to the expressly reserved power of the people. 
Art. XIII states the limitations upon the powers therein granted. 
Art. I, Sec. 1, states a power without limitations. 
In the absence of any limitation, the power therein expressly stated can be 

exercised by a majority, as heretofore. 
The framers of the constitution of 1842 had the good sense not to undertake 

to limit this power. 
Had they attempted it, it would have been futile. 
For the same power that made can unmake. 

6. A majority made the constitution in 1842 ; a majority can at any time un- 

make it and make a new constitution. 

By a majority of the electors, including those Avho will become electors 
under such a new constitution. 

This is what was done in 1842. 

In the last analysis the power rests with those commanding the greatest 
physical force, and that is the majority. 

The physical majority governs, as expressed by the vote of the majority. 

This constitutes the majority, the sovereign. 

One of the attributes of sovereignty. 

The sovereign power rules through this expression of the will of the ma- 
jority. 

Jameson defines sovereignty as indefeasible, i. e., incapable of abrogation. 

Therefore the sovereign right of the majority to govern cannot be abrogated. 

7. Sovereignty is and remains in the people. 3 Dallas, 54. 
It cannot pass from the State. Lieber Pol. Ethics, 250. 

A sovereign power, although it may temporanly limit itself, can, at any 

time, set aside such self-imposed limitations. 
Here is no contention for changing the constitution in a way not recognized 

in it. 
For, although the right of the people to make and alter their constitution of 

government is expressly stated in our constitution, it is not stated how 

this is to be done. 
Necessaril}'-, therefore, the general assembly may call a constitutional con- 
vention, there being a recognized necessity. 
The constitution so framed by such convention should be submitted to the 

vote of those who will become qualified electors under its terms. 
If a majority votes for it, it becomes the supreme law of the State, subject 

to the constitution and laws of the United States. 
This alone is a republican form of government. 

8. The argument is that the power of the majority to make and alter their con- 

stitution of government cannot be defeated. 
In Maryland and in Delaware the constitutions were changed in a different 

manner than that provided in the constitution. 
Defence of the course adopted: 

By Senator Bayard — his argument stated. 
By Senator Johnson — his argument stated. 



Page. 
9. A provision in a constitution limiting the power of the majority to alter it 
would be void. 
Art. XIII reconcilable with this, because it relates only to amendments and 

was to provide against a hasty change. 
This is rather an excuse than a defence. 

It is a mistake to undertake to prevent a majority from rewriting or amend- 
ing their constitution. 

10. If a distinction is made, the party in power will adopt the course most likely 

to carry out their aim. 
The "Revised Constitution" so-called, by legal fiction, was really a new 

constitution. 
It reversed the distinction between Art. I, Sec. 1, and Art. XIII of the 

present constitution. 
It put the will of the general assembly above the will of the people. 
It put it in the hands of the party in power to adopt the course the most 

likely to subserve their ends. 

11. Constitutions are too sacred to be framed so they can be thus juggled Avitli. 
To prevent it, the majority should govern, however a change in the consti- 
tution is instituted. 

The fundamental principle of all Anglo-Saxon government is that the 

majority rule when its will is ascertained through the forms prescribed to 

that end. 
This is what Washington meant in his language quoted in Art. I, Sec. 1. 
While power of general assembly to propose amendments can be limited, no 

limitations can be imposed upon right of people to make and alter their 

constitution of government. 
Except a vote of majority of all the electors might be made requisite. 
No State has yet done this. 
Necessity for vote of more than bare majority to change constitution 'is 

defended to prevent hasty action. 
Such a claim involves want of faith inconsistent with faith in our system of 

government. 

12. The majority rules in England, without our guarantees of a written consti- 

tution. 
In this State this want of faith is relic of policy of Anti-Dorrites. 
The principles Dorr contended for were right. 
His error was in appealing to arms. 
The principal should be adopted that the majority shall rule when their mWI 

is ascertained in a lawful, explicit, and authentic manner. 
To deny it is to establish an obligarchic form of governmont ; 

One inconsistent with Art. IV, Sec. 4, constitution of the Unitad States. 
It is not a republican form of government if the majority cannot make or 

alter their constitution of government. 
A republican form of government is one in which the majority governs. 
That our forefathers in this State intended the majority should govern is 

evident from examination of their compacts' of government. 

13. These compacts examined : 



VI 

Page. 

13. That of Providence. 

That of Pocasset or Portsmouth. 
The second one of Portsmouth. 
That of Newport. 

14. That of the union of Portsmouth and Newport. 
The charter of 1643-4. 

The charter of 1663. 

The declaration of 1647, as to the form of government in Providence 
Plantations. 

15. Art. I, Sec. 1, constitution of 1842. 

These show the Rhode Island doctrine is that the majority shall govern. 
The doctrine that two-fifths can defeat the will of the majority has no 

foundation or support in the history of this State. 
Smith V. Nelson, 18 Vt. 511, examined. 
The same power that makes by-laws can repeal them. 
Therefore a majority can repeal a by-law that a by-law can be repealed only 

by two-thirds. 
A self-imposed limitation can be set aside by the same power that imposes 

it. 

16. A limitation imposed by a higher power can be set aside only by that higher 

power. 

It is admitted a sovereign can restrain itself. 

Webster in Luther v. Borden, 7 How. 1, to that effect, quoted. 

But such restrictions can be set aside by the same power that set them up. 

A provision requiring more than a majority vote can be set aside by a 
majority. 

Repeal of law extending suffrage to women in New Jersey, considered, and 
exclusion of negroes from suffrage before accorded them, in New York. 

No State has yet ordained that majority shall not make and alter their con- 
stitution of government. 

Nearest approach to it is in Art. XIII, constitution of Rhode Island. 

Distinguishable, as limitation requiring special majority of general as- 
sembly to initiate an amendment and then a special majority of the 
electors to adopt amendment so initiated. 

17. Revised constitution attempted to limit will of people to revise or amend 

constitution to a three-fifth's majority. 
This cannot be done. Jameson, 546. Was reason enough for rejection. 
Majority must govern. This is not a revolutionary doctrine, the contrary 

is, and is unknown elsewhere, except to authors of revised constitution, 

and partially to framers of constitution of 1842. 
The latter limited power of majority of electors to accept amendment 

initiated by general assembly. 
Time confers no sanction on such a doctrine. 
Nor on what is claimed to be intent of framers of constitution of 1842 to 

deprive people (by majority vote) of their right to make and alter their 

constitution of government. 
Commissioners of 1897 incorporated this doctrine in their revised constitu- 
tion. 



Vll 

Page. 

18. Extraordinary that fifteen able men should agree on such a subversive 

doctrine. 
Defeat of revised constitution due also to failure to restrict poAvers of general 

assembly. 
Enormous powers always exercised by general assembly. 
Due to grant to it in charter of judicial as well as legislative powers. 
And to limited powers granted executive. 
General assembly continued to exercise judicial powers after adoption of 

constitution until restrained by decision in Taylor «, Place, 4 R. I. 324. 
Dread of centralized power caused delay until 1647 of acceptance of first 

charter. 
Warwick also then admitted, with Providence, Portsmouth, and Newport. 
Not to be confounded with present towns of same name. 
These four towns and other acquisitions constitute the State. 
This State declared its independence May 4, 1776. 
Continued to govern itself under unwritten constitution until 1843. 

19. So stated by Story, J. in Wilkinson v, Leland, 2 Peters, 627. 
Also by Jameson, Const. Convs. 83. 

And by Cox, Judicial Power and Unconstitutional Legislation, 177. 

This is important in its bearings on " Dorr war." 

In Bayard v. Singleton, Martin, 48, it was held that act altering constitution 
destroyed foundation of legislative authority. 

Declaration of independence of this State, did this. 

And left State under unwritten constitution. 

Or the declaration of independence was unconstitutional and void. 

Being under an unwritten constitution in 1842, people could change their 
government as they pleased. 

It needed only that it be the action of majority and become de facto govern- 
ment. 

Dorr made mistake in appealing to arms. 

But upon suppression thereof, his demands granted. 

20. A constitution framed and Dorrites voted on its adoption. 
Dorr's fame established. 

Revolution caused no break in Rhode Island and Connecticut, because 

governor not crown officer. 
Therefore old form of government continued until "Dorr war." 
But for that incident it might have continued indefinitely. 
Independence increased powders of general assembly. 
Decision in Trevett v. Weeden, 1789, checked this power. 
This case precursor of American doctrine of power of judiciary to declare 

a law unconstitutional. 
Reported and discussed in Cox, Judicial Power, 177-160 and 1 Thayer Cases 

on Const. Laws, 73. 
Judiciary more easily took the stand it did because State was governed 

under unwritten constitution. 

21. Taylor v. Place, 4 R. I. 324, 1856, put an end to exercise of judicial power 

by general assembly. 



Vlll 

Page. 

21. These two cases, landmarks in political history of State, emphasize too 

great power of general assembly. 

Any new constitution must recognize this and remedy it. 

This cannot be done by amending constitution under x\rt. XIII. 

Because consent of majority of all members of two successive general as- 
semblies necessary. 

No organized body will consent to limit its own powers. 

A constitutional convention alone can impose the limitations needed. 

22. Under Art. I, sec. 1, their result would become law upon approval by a 

majority of the electors. 

And a convention should be called whenever constitution needs general re- 
vision. 

Official declaration of such necessity by general assembly, January 27, 1897. 

To guard against new danger of political machine and boss rule, a conven- 
tion should be called. 

Extract from I. A. Bassett's Memorial Day address, May 30, 1899. 

23. This new danger must be recognized, met, and overcome. 

A constitution, framed by constitutional convention and adopted by electors, 

necessary to do this. 
Sense of civic pride and municipal responsibility must be raised to higher 

plane. 
Advisory opinion, 14 R. I. 654, erred in saying any new constitution which 

a convention could form would be a new constitution only in name. 
This assumes the bill of rights to be a finished product, to which nothing 

can be added. 
But it did not spring into being at one stroke. 
It was the result of centuries of effort to right centuries of wrong. 

24. Each victory for the right became a new clause in it. 
This contest not ended. 

Habeas corpus act marked one such victory. 

Machine politics and boss rule one new form of evil to be met and overcome. 

The victory will form a new clause in bill of rights. 

Reliance on old guaranties alone will result in loss of our rights. 

The necessary changes can only be made through a new constitution. 

Powers of general assembly must be restricted. 

Powers of executive and judiciary must be enlarged. 

Difference between power of people to make and alter their constitution of 

government under Art. I, Sec. 1, and right of general assembly to initiate 

amendments under Art. XIII. is fundamental. 
To ignore the distinction is but to contribute to the political subjugation of 

the people. 

25. New device of political machine to secure political plums for their followers. 
Some courts have maintained its legality. 

Sometimes through ignorance of political history and constitutional develop- 
ment of their State. 

Sometimes because the State is a new one without such a past as the New 
England States have had, and, therefore, their decision has a better 
foundation. 



IX 

Page. 

25. In cases denying its legality, the cause for its assertion is made apparent. 
Cases cited and quoted from. 

Fertile source of loss of civic pride and of political decadence in American 

cities. 
They are admitted to be the worse governed of all civilized countries. 
To improve them, constitution must fix their right to local self-government. 
This can only be done through a constitutional convention. 

26. Explanation of failure of revised constitution. 

It did not contain necessary restrictions on powers of general assembly. 

This not the fault of the commission. 

But of the limitations arising from nature of case. 

Commissioners aware of necessity for such restrictions. 

Also aware of necessity of approval by general assembly. 

And that it would not approve restrictions upon its own powers. 

So they omitted them. 

The result was satisfactory to general assembly but not to people. 

No constitution satisfactory to people without these restrictions. 

This can only be put into constitution through a convention submitting new 
constitution to electors, including those who will become electors under 
such new constitution, and its adoption by a majority vote. 

This was course adopted in past, and it should be followed now. 

But it is claimed judges have decided a convention cannot be called. 

This ignores difference between admsory opinion and actual decision. 

And is false shield of those not wanting a convention. 

Our court has recognized this distinction. 

27. In Taylor v. Place, 4 R. I. 324. 

In Allen v. Danielson, 15 R. I. 480, reversing advisory opinion in 13 R. I. 9. 
This distinction recognized in 58 Me. 573, do 615. 

28. In 72 Me. 542, McQueen, Ap. Jur. H. of L. 39. 
In 24 Am. L. R. 369 and 7 Harv. L. R. 153. 

Advisory opinion, 8 Mass. 549, overruled in later actual case, 12 Wheat. 19. 

Advisory opinion is not res judicata. 

Act of general assembly contrary to an advisory opinion, not unconstitu- 
tional. 

Time to sweep away this excuse for not doing what the general assembly 
has decided to be necessary. 

29. By its resolution of January 27, 1897, declaring the constitution should be 

revised. 

The only way now left to do this is by a constitutional convention. 

The general assembly should therefore call one at once. 

Or resubmit the question to the judges, with opportunity such as the 
judges said they would be glad to have, to give more careful study to the 
subject, with opportunity also for presentation before them of all views 
and authorities thereon. 

Or submit to electors an amendment to constitution under Art. XIII pro- 
viding for calling a constitutional convention and for adoption of new 
constitution by majority vote of electors including those to become elec- 
tors thereunder. 



Page. 

29. But the maxim : " Expressio uniiis est exdusio alterius," is cited as conclusive. 
The maxim criticised in 57 L. J. Q. B. 70 and 439. 

30. Art. XIII, and Art. I, Sec. 1, are two different things. 

A construction is to be favored that will give effect to both. 

This is no party question, but one of constitutional law. 

Nothing contrary to the constitution is proposed, but to give effect to the 
whole of it. 

The advisory opinion failed to do this and is itself unconstitutional. 

A legislative construction has been placed thereon by the calls for a con- 
vention. 

The question is political rather than legal. 

On both these grounds the court might have declined expressing opinion. 

Forefathers would have been astonished to know that by a quasi- judicial 
construction of Art. XIII an implied limitation were to be found depriving 
the people of express right stated in Art. I, Sec. 1. 

A new and unheard of rule of construction is thus set up. 

Proper application of the maxim. 

Framing a new constitution by a convention is not amending the existing 
constitution. 

Illustration. 

31. Difference between power exercised by general assembly under Art. XIII, 

and right of people under Art. I, Sec. 1. 

Members of the court held that express power given to one party to do one 
thing in an expressly limited way is an implied limitation upon the ex- 
press power of another party to do another thing in another way. 

The application of the maxim could not be more misplaced. 

Rather, the maxim should be applied under Art. I, Sec. 1, as reserving the 
absolute right of the people to make and alter their constitution of gov- 
ernment, and as excluding any restriction thereon under Art. XIII. 

The maxim has no real application, as Art. XIII relates to a different thing. 

The maxim is inapplicable, because the expressio unius is not the same in the 
two articles. 

32. Jameson, 605, quoted to same effect. 

A limitation on power of one party to do one thing in one way is no limita- 
tion on power of another party to do another thing in another way. 

The judges held that an implied limitation they found in Art. XIII is ex- 
clusive of all other methods, and, hence, denies all effect to the expressly 
stated right of the people under Art. I, Sec. 1. 

Constitutional guaranties are not to be thus construed. 

Necessity of review of constitutional development of this State. 

Real meaning of constitution requires knowledge of times and circumstances 
of its adoption. People v. Harding, 533 Mich. 485, quoted from. 

No constitution is wholly written. Illustration and comment. 

33. No constitution is wholly unwritten. Illustration and comment. 

The written constitution does not contain all there is of constitutional com- 
mand. 
People V. Hurlbut, 24 Mich. 44. 



XI 

Page, 

33. Magna Cliarta, 16th Article. 

34. The right to local self-government not lost because not expressly reserved 

in the written constitution. 
All power is not in the government unless expressly reserved to the people. 
But all power is in the people unless expressly granted to the government. 
State V. Denny, 188 Ind. 449. 
A written constitution is a limitation of powers of government in the hands 

of agents. 
Cooley, Const. Lims. 47. 

In Rhode Island the four original towns were separate colonies. 
They made the colony by their union. 

35. How these original towns were constituted, and their powers. 

36. None of their powers were derived from crown or parliament. 

37. Instances of exercise of self-instituted j udicial powers. 

38. Judicial system established before charter. 

In 1640 the colonies of Portsmouth and Newport united. 

They formed a union for their common objects, leaving to each its own 

local affairs. 
This is the leading characteristic of American union everywhere. 
Details of legislation of this first union of Rhode Island colonies. 

39. Each town reserved transaction of its own affairs. 

Such has ever been the Rhode Island custom, although not stated in the 

written constitution. 
In view of the encroachments of the general assembly upon these rights, it 

should be explicitly stated in the constitution. 
In 1641, this government was declared to be a democracy, or government by 

the majority. 
With protection to liberty of conscience. 
A seal Avas provided for the State. 
Its use one of the insignia of sovereignty. 1 Arnold Hist. R. I. 149. 

40. The significance of this union not adequately recognized. 

The two original towns conferred powers upon the union they instituted. 
The name of the island "Aquidneck" changed to " Rhode Island " under 

this union. 
When union came with Providence, the present name adopted. 
The colony was the offspring of the four united towns. 

41. Channing's view dissented from. Channing, U. S. of xlm. 37. 

The original towns of this State and the first union have enjoyed a period 
of sovereignty, although the colony and the State never have. 

1 Arnold Hist. R. I. 487. Foster, Town Govt, in R. I. 117, 39. The Nation, 
117. Milton, 2 Prose Works, 299. 

Milton and Williams, and their intercourse. 

42. Bryce, 1 Am. Commw. 18. Bancroft, 1 Hist. U. S. 380. 

Part of the unwritten constitution of this State is the right of the towns to 

manage their own local affairs. 
This continues to be the law here now. 
Claim that this sets up a new sovereignty. 



Xll 

Page. 

42. But there is no State sovereignty. 

The people of the United States are the only sovereign. 
Jameson, Const. Convs. 51 and 65. 

43. Madison in Fed. Conv. 1787, quoted. Penhallow v. Doane, Adrs. 3 Dall. 54. 
Jay, C. J. in Chisholm Excr. v. State of Ga., 2 Dall. 419, at 470-471. 

No State is or ever was independent. 

The people of the United States won a joint independence only. 

44. We speak of State sovereignty only in a conventional manner. 

As meaning the exercise of the highest powers allowed by the constitution 
and laws of the United States. 

Therefore, within certain limits, the toMms of Rhode Island are sovereign. 

No such affirmation made of towns of other States. 

Mushroom growths, some States undoubtedly have complete power over 
their towns that never existed until they created them. 

The decisions of cases in the courts of such States cannot be applied as de- 
termining the power of towns in such States as Rhode Island. 

Doctrine of States rights incompatible with our town system. 

Art. IX, Const. R. I. , sets the State above the United States and is wrong. 

Roger Williams sent to England, in 1643, to procure the charter. 

45. He returned in 1644, with the charter. 

Union under this charter not brought about until 1647. 

The records of this union, 1 R. I. Col. Recs. 147 to 207, important, and should 

be studied. 
These records examined, and results stated. 
Claim of authority by Massachusetts over Warwick. 

46. Extract from 1 MS8. John Carter Brown, No. 63. 
Warwick admitted to union under the charter, in 1647. 

All towns afterwards admitted were placed on the footing of original towns. 

Charter of Providence. 

Remarks thereon by Staples. 

Similar charters granted to Warwick and presumably to Portsmouth and 
Newport. 

Act of 1813. Its title shows that general assembly only enlarged and ex- 
plained powers already possessed by the town. 

Charter granted in 1832, to Providence, converting it into a city. 

It continued it a body politic and corporate under another name, at request 
of its inhabitants and representatives. 

47. Controversy between Massachusetts and Rhode Island over admission of 

Westerly. 
Statement as to settlement of this town. 

48. Asserted right of jurisdiction of Massachusetts denied. 1 Arnold Hist. R. 

I. 276, 282, 316. 
Westerly admitted in 1669. 2 R. I. Col. Recs. 250-251. 

49. Settlement of Block Island. Its history. 

Admitted as New Shoreham in 1672. 2 R. I. Col. Recs. 55, 466, 470. 
Peculiarities of its local government still preserved. Art. XIV, Sec. 4, con- 
stitution of Rhode Island. 



Xlll 

Page. 

50. 1 Arnold Hist. R. I. 304 ; Gen. Laws R. I. cap. 191, sec. 8. 

This town was not the creature of the State, but came into it with powers 

of its own that it -still continues to enjoy. 
Settlement and history of King's Towne, afterwards Kingston. 2 R. I. 

Col. Recs. 525. 
Admitted in 1674. 3 R. I. Col. Recs. 55. 

51. Settlement and history of East Greenwich. 
Arnold, 1 Hist. R. I. 428 ; 2 R. I. Col. Recs. 586-588. 
Admitted in 1677. 

Settlement and history of Jamestown. Admitted in 1678. 

Peculiarities of its local self-government. Gen. Laws R. I., cap. 228, sec. 24. 

In 1730 Providence divided into three towns, of Smithfield, Scituate, and 

Glocester. 4 R. I. Col. Recs. 442. 
To enjoy same privileges with other towns. 
Contention sustained that original towns and all after admitted have same 

right to local self-government, etc. 

52. Letter of John Howland from Stone's Life and Recs. of John Howland, 256. 
He voiced, from life-long experience, the common understanding. 
Analogy between system of towns and the State in Rhode Island and the 

system of States forming the United States. 

53. 1 Arnold Hist. R. I. 211 note ; Foster Town Govt, in R. I. 35. 

More ideas that since have become national emanated from Rhode Island 
than from any other colony. Stated by Bancroft, in address in 1866. 

The power of the towns of Rhode Island to local self-government cannot 
be taken away. 

54. Reasons contributing to ignorance of existence of town powers of thirteen 

original States. 
The success of the revolution exalted the power of the States. 
The absence of printed records of doings of founders of towns and colonies. 
These. doings known only to a few antiquaries. 
Consequently there has not been an educated public opinion to -keep alive 

knowledge of these rights and to prevent encroachment on them. 
Step by step these rights curtailed by legislatures and courts. 
Decision in Commonwealth v. Plaisted, 148 Mass. 375, deplored. 

55. The lawyers of the present day know more about the development of the 

constitutional law of the State than their predecessors did when the 
records were not in print. 

They should help to form a better enlightened public opinion on the sub- 
ject of these powers. 

This is the object of this pamphlet. 

The general assembly has power to pass general laws and to mould and 
direct, upon request, the exercise of powers by towns. 

In Rhode Island towns are the recognized units of its political system. 

Cities are but over-populated towns that have asked for city government. 

In Rhode Island changes from town to city government, of boundary lines 
or divisions of towns, have been made by the general assembly only upon 
request of parties affected and subject to their consent. 



XIV 

Page. 

56. Philadelphia v. Fox, 64 Penn. St. 169, examined. Such a decision impossible 

in Rhode Island. 
The consequence of such decisions is loss of civic pride, all self-control being 

taken away, and power passing into hands of professional politicians. 
A like fate awaits us here if we tamely submit. 
It is urged such a course is necessary to retain control of democratic cities 

by republican legislatures. 
This does not appeal to honest believers in our form of government. 
Local self-government practised in England of old. 
State V. Denny, 118 Ind. 458 ; Green, Town Life in Fifteenth Cent. 2. 
But there, also, there was no printed record, no trained body of lawyers 

versed in knowledge of constitutional law of town rights. 
Knowledge thereof therefore, was utterly blotted out. Green, Town Life 

in Fifteenth Cent. 5. 

57. . Supremacy of the town in Rhode Island evidenced by insignificant role of 

county. 
First division into counties was in 1703. 3 R. I. Col. Recs. 477-478. 
58^ They were not incorporated, but were merely geographical divisions of the 

colony. 
Washington county created in 1729. 4 R. I. Col. Recs. 427. 
Bristol county created in 1747. 5 R. I. Col. Recs. 208. 
Kent county created in 1750. 5 R. I. Col. Recs. 302. 

In Rhode Island everything is done by the towns and nothing by the State. 
No commissioners, records, taxes, roads, nor probate courts of counties. 
A county cannot sue nor be sued in Rhode Island, and is not a corporation. 
Examination of the poAvers of towns over their own probate matters. 
Statute of 1647 conferred probate jurisdiction on head officer of the town. 

1 R. I. Col. Recs. 188. 
In 1675 the former custom was restored and has continued ever since, where- 

under each town council is the probate court for the town. ^ R. I. Col. 



I Rees. 525 



When increased population renders it necessary, the general assembly pro- 
vides a special probate court. 

59. The life of the towns has been continuous and uninterrupted. 
The life of the colony and State has not. 

Coddington's charter explained. 

It put an end to the united colony for the time being. 

A return to a reunion under the charter was sought. 1 Arnold Hist. R. I. 

239. 
Clarke and Williams sent to England to effect this. 
They succeeded in their mission in 1652. 
Vain attempts at reunion. 1 R. I. Col. Recs. 239. 
Two conflicting general assemblies in session in 1653. 
Letter from Sir Henry Vane urging reconciliation. 

60. Reunion effected in 1654. 

Usurpation of Andros, December, 1686, to April, 1689, suspended all charter 
governments of JSTew England. 



XV 

Page. 

60. I Arnold, Hist. R. I. 487 ; 3 R. I. Col. Recs. 191. 

The towns by their continuous existence kept alive the vital flame after 

three years of suspension of colonial corporate existence. 
The referendum and initiative in Rhode Island. 

61. Introduced in 1647 upon acceptance of charter. 

62. Explanation and citation of acts. 1 R. I. Col. Recs. 147-148. 

The freemen met, in person or by proxy, in Newport, until 1760, to elect 
members of the general assembly. 6 R. I. Col. Recs. 256. 

63. 1 Arnold, Hist. R. I. 203 ; 1 R. I. Col. Recs. 228, 1650. 
1 R. I. Col. Recs. 401, 1658. 

64. 1 R. I. Col. Recs. 429, 16602 ; do. 27. 

65. The remark by Gov. Hopkins (7 R. I. Hist. Colls. 45) shows that even then 

the people had forgotten what the powders of the towns were. 
The towns of Rhode Island possessed independent governmental powers 
before there was any colony ; they formed the united colony, surrender- 
ing some powers to it ; new towns were admitted upon the footing of 
old towns ; the powers of the colony and State increased, those of the 
towns diminished ; this was done with their consent ; the towns still have 
the right to exist and to manage their own local affairs, while the State 
has the right to pass general laws. 

66. Particular acts of the general assembly cited that infringe this principle. 

67. The requisites of a new constitution. 

It should contain statement of all the fundamentals of government. 

This includes introduction, declaration of rights, scheme of public manage- 
ment and administration, articles relating to the electorate, corporations, 
and such new matter as Experience has shown cannot be carried into 
effect through ordinary legislation. 

Mere legislation should be avided, so far as possible, in a constitution. 

There should be distinct recognition of the right of towns and cities to self- 
government. 

As in the constitutions of Missouri, California, and Washington. 

The general assembly should have power to pass general laws. 

But not laws interfering with the rights and powers of towns and cities. 

The experience of the three States named shows this works well. 

68. Examination of the law and the cases in Missouri, California, and Washing- 

ton. 

69. The citizens of Providence should pass upon charter lately submitted for 

that city. 
A constitutional inhibition should protect it from change by the general 

assembly after its adoption by the electors of Providence . 
The right to privacy should be guaranteed. 
Necessity for such a guaranty. 4 Harv. L. R. 193. 
This can only be done by putting it in the bill of rights. 
Laws against unjust imprisonment not enough until habeas corpus act passed. 
Necessity for restricting power of general assembly. 
Inhibition against ex post facto legislation should extend to civil as well as 

to criminal legislation. 



XVI 

Page. 

69. The general assembly should be forbidden to interfere in local affairs of 

towns and cities. 
Earnings needed for support should be exempt from attachment. 

70. No property should be exempt from taxation. 
Except when to tax it would be unconstitutional. 
Witnesses in criminal cases require more protection. 
Justice and public policy require it. 

A mode should be provided to collect a claim against the State. 

Extra pay to public officers should be prohibited. 12 Harv. L. R. 816. 

The qualifications for the suffrage should be simple and uniform. 

71. All persons 21 years old not disqualified through crime or mental incapacity 

should be voters. 
Education, including teaching of morality, including political morality, 

should be insisted on. 
Our retention of property qualifications has not resulted in better government^ 
The time has come to carry into effect our professed belief in a democratic 

form of government. 
It is safer to trust all the people than any one section. 

72. Suffrage should be extended to women. 

It will be when they are convinced of its wisdom and ask for it. 

No State is in normal condition when any large class is excljided from 

suffrage. 
If women were voters, laws discriminating against them would be repealed. 
As, for instance, the right to administer without accountability on deceased 

wife's estate. 
A plan should be adopted under which suffrage could be extended to women 

when public opinion renders it feasible. 
All contested election cases should be decided by the judiciary. 
No "grab act," "back pay act," nor distribution of public offices among 

members of the general assembly should be possible. 
All State officers in towns and cities appointed by the general assembly 

should be paid by the State. 
Corporations should be formed under general laws, even if they exercise 

rights of eminent domain, in which case publicity should be requisite. 
No monopoly should be allowed except for adequate consideration and for a 

limited time, and the court should have powers to compel compliance 

with these provisions. 
A bicameral legislature should represent different constituencies. 

73. Equal representation of each town and city in senate, accords with the his. 

tory and constitutional development of this State. 
All the more imperatively, representation in the lower house should be based 

on population only, without regard to town lines. 
Therefore, the State should be divided into districts of equal population, 

each to elect a representative. 
With provision for minority representation. 
An independent, able judiciary is best secured by vesting appointment of 

judges in the executive, under proper restrictions. 



XVll 

Page. 

73. The judges should be removable only because of old age or for good cause. 
Only men of one party are now placed on the bench. 

Judges should be appointed Irrespective of party. 

Publicity is one of the most potent means for promoting honesty in adminis- 
tration of public affairs. 

74. Therefore public returns should be required in all election matters and in all 

matters before the general assembly. 

The old inhibition of grant of monopolies is evaded by coupling the grant 
with a consideration paid. Even if it is inadequate, it thus becomes a con- 
tract and is protected by Art. I, Sec. 10, Constitution of United States. 

The remedy is a new clause in the bill of rights forbidding such contracts 
except for adequate consideration and for a limited time only. 

Full statements of moneys received and how spent for campaign purposes, 
should be required. 

75. Organization in political affairs acknowledged to be necessary. 

But such organization is of public concern, and publicity is requisite to 
secure honesty. 

Secrecy in political organization is requisite only to conceal dishonesty. 

The State should not be committed to fixed periods only for revisions of 
constitution. 

Because it is a denial of the right of the people to make and alter their con- 
stitution of government, and a limitation by implication upon that right. 

The general assembly, and the people, too, should have power to suggest 
amendments or a revision, as occasion may require. 

We cannot make our successors' rights different from our own. 

Our predecessors could not make our rights different from their own. 

The principle maintained is that in Art I, Sec. 1, and that no limitation can 
be placed on that right. 

Limitations on this right have been attempted in other States and have failed. 
They should not be introduced here. 
77 to 110. Essay at a draft of a new constitution submitted. 



PREFACE 



In reply to questions put by the senate, the members of 
the supreme court gave their advisory opinion March 80, 
1883, to the effect that the general assembly has no power 
to call a constitutional convention. If correct, this would 
render wholly nugatory the express declaration contained 
in Article I, section 1, of the constitution: "The basis of 
our political systems is the right of the people to make and 
alter their constitutions of government." January 27, 1897, 
the general assembly passed a resolution " stating there is 
a wide-spread feeling among the people of the State that 
the constitution should be carefully and thoroughly revised, 
and such changes as may seem to be advisable, in view of 
the changed condition since it was adopted, properly and 
carefully prepared," and, therefore, authorizing the governor 
to appoint a commission of fifteen persons to revise the 
constitution and to make report to the ge'neral assembly, 
that such revised constitution might be submitted to the 
electors in the form of an amendment to the present consti- 
tution. The governor appointed the commission, in accord- 
ance with the authority thus conferred upon him. This com- 
mission made report to the general assembly at its Janu- 
ary session, 1898, submitting a revised constitution drawn 
by them. This revised constitution was submitted by the 
general assembly to the electors of the State as an amend- 
ment to the existing constitution under Article XIII there- 
of, and failed to receive the necessary approval of three- 



XX 



fifths. It was again submitted to the electors on June 20, 
1899, with a change of the time a constitutional convention 
should be called, and again it failed to pass. It would 
seem, therefore, that despite the admitted necessity for a 
new constitution none is to be had. It is the purpose of 
this pamphlet to show that the general assembly should 
call a constitutional convention forthwith ; that it has this 
power ; that the advisory opinion to the contrary was clearly 
wrong and has no effect as a judicial decision ; that this 
course would be strictly in accordance with established 
American usage, when necessity arises for a revision of the 
constitution ; that such thorough revision can be made in 
no other way ; that the majority always has the right and 
power to make and alter the constitution ; that this doc- 
trine is strictly in accord with the provisions of the exist- 
ing constitution and of Article I, section 1, more particu- 
larly ; that the constitution framed by this convention 
should be submitted to the vote of the electors, including 
those who will become electors under it, and should become 
the law of the land if approved by a majority of those 
voting thereon, as was the case, in both respects, when the 
existing constitution was adopted in 1842. It is further 
the purpose of this pamphlet to show some of the defects 
and omissions o-f the existing constitution and how they 
may be remedied, submitting to that end an essay at a draft 
of a new constitution for the consideration of those who 
wish to see the government of this State made what it 
should be, in the hope that this may in some degree con- 
tribute to that end. 

AMASA M. EATON. 

Providence^ R, /., September 19, 1899. 



PETITION TO GENERAL ASSEMBLY 



To the Honorable the General Assembly : 

The CoDstitutional League respectfully represents : 

In the words of the resolution passed by the general assembly, 
January 27, 1897 : 

" There is a wide-spread feeling among the people of the State that 
the constitution should be carefully and thoroughly revised, and such 
changes as may seem to be advisalale. in view of the changed condi- 
tion of affairs since it was adopted, properly and carefully prepared." 

Art. I, sec. 1 of our constitution expressly declares, in the words of 
the Father of his Country, that " the basis of our political system is 
the right of the people to make and alter their constitutions of 
government, but that the constitution which at any time exists, till 
changed by an explicit and authentic act of the whole people, is 
sacredly obligatory upon all." 

The time has come for a change by an explicit and authentic act of 
the whole people, and this can only be done through a constitutional 
convention, composed of delegates lawfully elected for that purpose, 
the result of the labors of such convention to be submitted to the 
electors for approval or rejection. This method is consonant with 
our system of government, and is the method usually followed in the 
States of our Union. 

If elaborate express provisions had been inserted in the constitution, 
providing how this right of the people to make and alter their consti- 
tutions of government could be carried into effect, no implication 
found by construction in any other clause of the constitution could 
be held to deprive the people of this expressly stated right and power 
to make and alter their constitutions of government. 

We submit that the absence of such provisions does not render any 
the less secure and absolute this expressly stated right. Details of 
this kind are properly omitted from a written constitution, the law- 
making branch of the government being the proper one to carry into 
effect the principles stated, and the powers and rights granted or 
reserved, by appropriate legislation or action. 



XXll 

This league, therefore, respectfully petitions your honorable body 
to call a constitutional convention to frame a new constitution that 
shall be submitted to the electors for their approval or disapproval. 

But it will be claimed it has been decided by the justices of the 
supreme court that the general assembly has no power to call a 
constitutional convention, because they have said so in their advisory 
opinion. 

This were to ignore the recognized distinction between an advisory 
opinion of the judges and an actual decision of a litigated case by 
the court, and to treat the opinion as an actual decision. This is the 
common device of those who, not wanting a constitutional conven- 
tion, shelter themselves behind this false shield. Having such pro- 
found deference for the court, why do they not also defer to the 
court's own declaration and recognition of the distinction pointed 
out? 

In the case of Allen vs. Danielson, reported in 15 R. I. 480, after a 
full hearing, with arguments and citation of authorities on both sides, 
the judges, as a court, reversed their own advisory opinion as mem- 
bers of the court, on the same subject, reported in 13 R. I. 9, giving 
as one of their reasons for doing so, the fact that the question in 13 
R. I. 9 " was a petition on a case stated, and was doubtless submitted 
without full argument or presentation of authorities. ***** 
But we have no doubt that we should have decided the case differ- 
ently if we had had before us, when we decided it, the same array of 
authorities which we have before us now." 

In Taylor vs. Place, •! R. I. 324, the same question came before the 
supreme court, in an actual case, that the judges had previously given 
a written opinion upon, to the governor. The court, by Ames, C. J., 
said : " This is the first time, since the adoption of the constitution, 
that this question has been brought judicially to the attention of the 
court. The advice or opinion given by the judges of this court, when 
requested, to the governor, or to either house of the assembly, under 
the third section of the tenth article of the constitution, is not a 
decision of this court ; and given as it must be, without the aid which 
the court derives in adversarj^ cases from able and experienced coun- 
sel, though it may afford much light from the reasonings or research 
displayed in it, can have no weight as a precedent.'' 

The supreme court of this State has, therefore, decided twice that 
an advisory opinion of its members is not conclusive, and maj^ be 
reversed when the same matter comes before the court in an actual 
case. 

Twenty-seven constitutional conventions have been called by the 
State legislatures, acting without specific authority in the respective 
existing constitutions to call such a convention. Thirteen of these 
occurred before the constitution of this State was adopted, in 1842. 
Of the original thirteen States only one contained a provision for 



XXlll 

amendment, yet all have changed their constitutions, and all have 
done it through constitutional conventions called by the legisla- 
ture. The common practice of these and of other States has fixed 
this as a part of the common constitutional law of the land. 

The framers of our constitution, in omitting to prescribe how a 
constitutional convention may be called, knew, or may be supposed 
to have known, this prevailing custom of calling such conventions by 
State legislatures, without specific authority so to do in the existing 
constitutions, and, therefore, they did not deem it necessary to do 
more than to affirm the right of the people to make and alter their 
constitutions of government, leaving it to the general assembly to 
give effect to this expressly reserved right, by appropriate action, 
whenever the necessity might arise. 

This league adopts a construction that gives effect both to Article I, 
section 1, and to Article XIII of the constitution. It gives effect 
thereby to the absolute and unlimited right of a majority of the 
people to make and alter their constitutions of government, as ex- 
pressly stated in Article I, section 1. It gives effect, also, thereby to 
Article XIII, stating the limited manner in which one branch of the 
government, the general assembly, may initiate amendments to the 
constitution. But for the express limitation upon the power of the 
general assembly therein contained, the usual majority of the general 
assembly could propose amendments for the approval of the usual 
majority of the electors. They are forbidden to do so, except by a 
majority of all the members elected to each house in two successive 
general assemblies. A self-imposed limitation is also placed upon the 
power of the electors, preventing them from acting by the usual 
majority, and requiring the assent of three-fifths of the electors 
voting thereon, before any amendment thus proposed shall become a 
part of the constitution. To extend Article XIII by implication into 
an abrogation of the express right reserved in Article I, section 1, is 
to violate the well-known rule of construction requiring effect to be 
given, if possible, to all the provisions of an instrument. 

Instead of following this rule, the advisory opinioji of the judges 
enlarges the scope and operation of Article XIII beyond anything 
ever contemplated by its framers, makes it exclusive by what it thus 
finds implied in it, and thereby entirely abrogates and excludes Arti- 
cle I section 1, thus depriving the people of their expressly reserved 
right to make and alter their constitutions of government. It is not 
thus that constitutional guarantees are to be construed. 

In view of these facts and principles, still insisting that the general 
assembly has power to call a constitutional convention, the necessity 
therefor being generally as well as officially admitted, that the advi- 
sory opinion denying this right is clearly erroneous, and that in no 
event does it have force and effect as a decision, we respectfully peti- 
tion your honorable body to call a constitutional convention ; or, if 



XXIV 



the power to do so be still doubted, we ask that these importaDt ques- 
tions be again submitted to the members of the supreme court, with 
an opportunity such as the judges themselves said in their advisory- 
opinion they would be glad to have, to give them more careful study, 
and especially with opportunity for the presentation to the judges of 
all views relating thereto, with full argument and presentation of au- 
thorities, in order that the conclusions reached may merit the confi- 
dence, approval, and support of the people of the State. 

But should the general assembly in its wisdom deem either of these 
courses inadvisable, we respectfully petition j^our honorable body to 
submit to the electors an amendment to the constitution providing 
for calling a constitutional convention, under and in accordance with 
the provisions of Article XIII of the constitution, and providing that 
the constitution drafted by such convention shall go into effect if ap- 
proved by a majority of the electors voting thereon, such electors to 
include those who will become electors under such new constitution, 
following in these particulars the precedent set upon the submission 
and adoption of the existing constitution in 1842. And as in duty 
bound your petitioners will ever pray. 

THE CONSTITUTIONAL LEAGUE, 

H. J. Spooner, President. 

Arthur W. Brown, Secretary, 
Amasa M. Eaton, 
Daniel E. Ballou, 



J. Q. Dealey, r (^'o"^"^ittee. 

Edward D. Bassett, j 



COINSTITUTION-MAKIXG IN EHODE ISLAND. 



Article I, section 1, of the constitution of Rhode Island begins : 
"In the words of the Father of his Country, "\ve declare that 'the 
basis of our political systems is the right of the people to make 
and alter their constitutions of government '^^*^^^^^*." 

The right of the people to make and alter their constitution of 
government could uot be more expressly stated nor more explicitly 
reserved. 

It is an unqualified absolute right — one, indeed, that exists even 
if not stated, for the same power that made our constitution, i. e. 
the sovereign people, can unmake it — can destroj^ it - can alter it. 

But the makers of our constitution did not rely upon this un- 
doubted sovereign power— the power to make and alter their con- 
stitution of government. They put it in the front of the written 
constitution, as the very right of all rights. 

Nothing can deny nor destroy it. It is there, fixed and unalter- 
able, and it only remains to give it force and effect. This might 
have been done by inserting a clause in the constitution providing 
the means for carrying it into effect. 

We search in vain, however, throughout the rest of the constitu- 
tion for any directions of this nature. We find it absolutely silent 
on the subject. There is the inherent right of the people that 
made the constitution to alter it, as well as to make it, expressly 
stated — but nothing more. The usual rule of construing such 
statements of rights and express reservations of powers in a written 
constitution is to give them full force and effect by broad con- 
struction and interpretation. Their scope is not to be narrowed 
by implication nor restriction, but they are to be enlarged and 
given full effect in securing the freedom of the subject and the 
preservation of his rights and privileges with all the consequences 
flowing therefrom. It is in this spirit that all the other statements 
of rights in our bills of rights are always construed and carried 
into effect. 

In pursuance of this general policy of the law, it has always 
been held that the legislature has the power to pass laws to carry 
into effect the powers granted or reserved in the bill of rights of 
every constitution in the United States. The general assembly of 



this State has, therefore, the power to pass all legislation necessary 
to give effect to this expressly reserved right of the people to 
make and alter their constitution of government. One of the most 
appropriate, natural, and common means to effect this end is the 
issuance of a call to the people of the State to elect delegates to 
meet in convention to make such alterations in the constitution as 
may be necessary, and to submit the result of their labors to the 
approval or disapproval of the electors, when a necessity arises 
for revising the constitution. As necessary means to this end the 
general assembly may provide the time, mode, and manner for the 
election of such delegates and for the submission of their labors 
to the electors, and, if their vote be in the affirmative, the time 
when the new constitution shall take effect. 

These are implied powers of the general assembly in the prem- 
ises, resulting from the general grant of legislative powers to this 
department of government and the inherent indefeasible right of 
the sovereign power, the people, to make and alter their constitu- 
tion of government, that, as it happens, in this State, is also, in 
the written constitution, an expressly stated right. 

Whenever, therefore, the general assembly is satisfied that it 
is time a new constitution should be framed, it has the right 
and the power, nay, more, it becomes its duty, to call a constitu- 
tional convention. There can be no question that the time has 
come when a new constitution is demanded. It is a matter of 
common knowledge that public opinion has for years called for a 
new constitution. The general assembly has recognized the 
necessity by consideration of the subjeist year after year, by the 
question put to the judges in 1883 whether the general assembly 
can call a constitutional convention and by authorizing the ap- 
pointment in 1897 by the governor of a commission to draft a new 
constitution by amending the old one, and by resolving January 
27, 1897 : 

"There is a wide spread feeling among the people of the state that the con- 
stitution should be carefully and thoroughly revised, and such changes as may 
seem to be advisable, in view of the changed condition of affairs since it was 
adopted, properl}'- and carefully prepared." 

The right of the people to make and alter their constitution of 
government being absolute and being expressly stated, no limita- 
tion can be placed upon it by finding such a limitation implied in 
another clause of the constitution. 

Hence, to contend that this right can only be exercised after the 



proposal of an amendment by the majoritj^ of all the members 
elected to each honse of two successive general assemblies, etc., 
would be to place an implied limitation in the declaration made 
in Art. I, Sec. 1, by the makers of our constitution. 

Let us see how it would read : " The basis of our political sys- 
tems is the right of the people to make and alter their constitu- 
tions of government : Provided, however, this right of the people 
is subject to the will of the general assembly in the manner pro- 
vided in Art. XIII," that is to say, this expressly stated right of 
the people can only be exercised at the initiative of the general 
assembly, the people's agent and servant, in the manner prescribed 
in Art. XIII. 

The absolute right expressly secured to the people (and. this 
means a majority of the people) is to be defeated by an implica- 
tion that what was meant was that it could not be exercised un- 
less first proposed by a majority of all the members of each house 
of two successive general assemblies, and approved by a three- 
fifths majority of the electors. This is to substitute, first, the will 
of the general assembly for the will of the people ; and, second, 
the will of three-fifths for the will of a majority of the people. Is 
it thus that expressly stated sovereign rights are to be hedged in 
by implication ? 

Rather should a way be sought to give effect to both clauses of 
the constitution, and this, it is submitted, can be easily done by 
restricting the operation of Art. XIII to the case of amendments 
proposed by the general assembly, leaving Art. I, Sec. 1, to apply 
to everything outside of such amendments proposed by the 
people's agent, the general assembly. Surely a construction is to 
be preferred that shall give full force and effect to both clauses of 
the constitution rather than a construction that shall extend the 
operation of one clause to the extinction of the other clause, es- 
pecially when the effect is to enlarge by implication the power con- 
ferred in one upon the people's agent, the general assembly, while 
completely extinguishing the express power reserved in the other 
to the people in their sovereign capacity. 

The power of the general assembly to call a constitutional as- 
sembly is also further established by the fact that it has frequently 
exercised the power, and without objection. 

Thus, the general assembly called a constitutional convention 
in 1824. It called another in 1834, another in 1841, and still another 
in 1842. This last one framed our present constitution. In 1853 



the geDeral assembly submitted to the voters the question whether 
a convention should be called, and they answered, no. It then 
asked them if they desired a revision of the constitution, and 
again the answer was no. 

It will be contended, however, that all these calls of the general 
assembly for conventions were before the adoption of the present 
constitution, and that, as the judges said in their opinion of March 
30, 1888, 14 R. I., at p. 654, the provision for amendment in the pre- 
sent constitution is exclusive. In reply, it is submitted that Ar- 
ticle XIII relates only to amendments through the initiative of 
the general assembly, and has nothing to do with Article I, Sec. 1, 
reserving expressly the right of the people (not of the general 
assembly) to make and alter their constitution of government. In 
this view Article XIII is something extraneous and additional to 
Article I, Sec. 1, providing, not how the people may make and al- 
ter their constitution of government, but how the agent of the 
people, the general assembly, may initiate or suggest amendments, 
and providing further what sanction by the people shall make 
such suggested amendments a part of the constitution. 

These repeated acts of the general assembly, before the present 
constitution was adopted, in calling constitutional conventions, 
show that when this constitution was framed, with the express 
statement in it that the people have a right to make and alter 
their constitution of government without providing specifically 
how this was to be done, the framers of the constitution took it 
for granted that the general assembly could do what it had done 
before, ?'. 6., call a constitutional convention whenever the neces- 
sity might arise, especially as they took care to add (Article lY, 
Sec. 10) "The general assembly shall continue to exercise the 
powers they have heretofore exercised, unless prohibited in this 
constitution." 

The constitution adopted in 1842 was the work of a majority. 
Plainly a majority now as well as then can make and alter their 
constitution of government. 

Article XIII provides that an amendment that has been passed 
by two successive general assemblies, by a majority of all the 
members elected to each house, and is ajjproved by three-fifths of 
the electors voting thereon, shall thereupon become operative as 
a part of the constitution. 

Plainly this mode of amending the constitution upon the initia- 
tive of the general assembly has nothing to do with the right of 



the people to make and alter their constitution of government, 
and cannot, even by implication, be considered as limiting- that 
light in any way, bnt rather as setting up another and an addi- 
tional manner in which, by the initiative of the general assembly 
only, a change can be made in the constitution. How can the ab- 
solute power of the people be limited simply by express mention 
of the way in which one agent of the people can propose amend- 
ments? Suppose it had been another agent of the government 
that had been entrusted with this power. Suppose the constitu- 
tion had provided that the governor or the supreme court could 
suggest or initiate amendments that should become operative 
when sanctioned by a three-fifths majority, by what rule of con- 
struction could this additional mode of amending the constitu- 
tion be tortured into an implied negation of the expressly stated 
power of the people to make and alter their constitution of gov- 
ernment? The very fact that any amendment initiated by the 
general assembly shall not become a part of the constitution un- 
til approved by three-fifths of those voting thereon, shows that it 
is not in pursuance or in the exercise of the expressly reserved 
power of the people to make and alter their constitution of gov- 
ernment (by a majority vote) that an amendment may be ado^^ted 
in this peculiar manner, but rather that it is something extraneous 
and in addition to this expressly reserved power. 

It is to be noticed, also, that although there is the express proviso 
that an amendment passed by two successive general assemblies 
must be ratified by a three-fifths vote, there is no limitation placed 
in Art. I, Sec. 1, upon the right of the people to make and alter 
their constitution of government, except that it shall be the ex- 
plicit and authentic act of the whole people. In the absence of 
any such limitation, it follows as a matter of course that the power 
must be exercised as all other political powers are exercised, that 
is, by a majority, just as the constitution of 1842 itself became 
operative when ratified by a majority. 

The good sense of the framers of our constitution is shown by 
the fact that they did not attempt to place any limitation upon the 
power of the majority of the electors as the representatives of the 
people to make and alter their constitution of government, for, 
had they made any such attempt, it would have been futile. For 
the same power that made can unmake. The majority made the 
constitution in 1842. The majority could unmake it the next day, 
or any other day, or to-morrow, of course in an orderly, lawful 



manner. By this it is meant that just as the present constitution 
became operative when ratified by a majority vote of the electors, 
so a new constitution framed by a constitutional convention called 
by the general assembly will become operative when ratified in 
the same way by a majority vote of the electors. If it is asked, 
by a majority of what electors, the answer is, by a majority of the 
electors including those who will become qualified as electors 
under such new constitution. This is what happened when the 
present constitution was adopted. The Law and Order party 
struggled against this conclusion, but at last they accepted it, as, 
indeed, they were obliged to. In the case of a small electorate 
and a new constitution that greatly enlarges the electorate, if the 
question of its adoption be left only to the old electorate, no 
change would ever be made. The old electors vote always to re- 
tain their own special privileges. Our old charter was abrogated 
finally and the present constitution with its enlarged electorate 
was carried by the votes of the new electors — that is to say, it Avas 
carried by the aid of those who were not voters under the old 
system, but who became voters under the new system. It is ad- 
mitted that in the last analysis the power rests with those who can 
command the greatest physical force — that is to say, with the 
majority. One of the reasons that has been always presented 
against woman suffrage is the difiiculty that would arise were the 
majority in number, including women who are physically weak, to 
vote one way, while the majority in physical strength were to re- 
fuse to obey their vote. It is not an argument that carries weight, 
but the fact of its presentation illustrates the truth that after all 
it is the physical majority that governs, as expressed by the vote 
of the majority. And when we say that the people are sovereign 
we mean that their will as made manifest by the action of the 
majority of electors determines the action of the State. The car- 
dinal underlying principle of all so-called Anglo-Saxon or Teutonic 
government is that the majority shall rule. We say that the sover- 
eign power is indefeasible and illimitable, which means that it is im- 
possible to prevent the rule of the majority. It is the majority, mak- 
ing its behests known through the ballot-box, that governs. This 
government by the majority is one of the attributes of sovereignty, 
that is to say, the sovereign power rules through this expression 
of the will of the majority. Jameson, in his great work on Con- 
stitutional Conventions, p. 20, defines sovereignty as indefeasible, 
that is to say, incapable of being defeated or abrogated. Hence 



the sovereign rig-lit or power of goverDineiit throngli the will of 
the people, as made known by the vote of a majority of the electors 
at the polls, is incapable of being abrogated or defeated. 

The sovereign is the person or body of persons over whom there 
is politically no superior. (Jameson, Sec. 18.) 

PenballoAv v. Doane's Adr. 3 Dallas, 54. 

" Sovereignt}^ is and remains in the people," 

It is inalienable — that is, 

** Society can never delegate or pledge away sovereignty." 

"Being inherent and necessarily in the State, it cannot pass from it so long 
as the latter exists." (Lieber Pol. Ethics, 250-251.) 

A sovereign power, though it may temporarily place limitations 
upon the exercise of its own power, can, at any time, resume the 
exercise thereof untrammeled by its own self-imposed limitations. 
The limitations placed by a sovereign jDower upon the exercise of 
its own i^owers are not binding upon itself except in so far as it 
may choose to obey them. The creation of self-limitations by a 
sovereign power is no bar to their abolition by the same sovereign 
power. This is no argument for adopting a new constitution in a 
manner different from that provided in the instrument itself, for 
in the case of the constitution of this State, beyond the express 
statement of the right of the people to make and alter their con- 
stitution of government, the constitution is absolutely silent as to 
how this right may be carried into effect. 

The contention herein made is that the majority have a right to 
make and alter their constitution of government, that this right 
cannot be abrogated, and that nothing to the contrary is to be 
found in our constitution, which does expressly reserve the right 
of the people to make and alter their form of government ; and this, 
by necessary implication, carries with it the right of the general 
assembly to call a convention, when there is a recognized necessity 
for it ; the right of such a convention to meet and frame a new 
constitution, that shall be submitted to the vote of the electors who 
will become qualified under its terms ; and, lastly, the right of the 
majority to make such a new constitution, thus ratified by their 
votes, the supreme law of the state, subject, of course, to the con- 
stitution and laws thereunder of the United States. This and this 
only is a republican form of government in this land. The ne- 



cessity for such a convention is everywhere acknowledged. Let 
the general assembly do its duty and call it. 

The framers of our constitution, in omittiDg to provide how our 
people can make and alter their constitution of government, and 
in omitting to state that a majority can do it, it is logical to hold, 
must have meant, as the general assembly had already called four 
constitutional conventions, of which two had been called within two 
years of the convention that framed the present constitution, that 
the general assembly could call conventions again Avhenever neces- 
sitj^ might demand. (See also Art. IV, Sec. 10.) They must also have 
meant that a majority can make and alter their constitution of gov- 
ernment through the usual American channels and methods for 
bringing about such alterations and carrying them into effect. This 
includes the usual American rule that all this may be done by the ma- 
jority. This natural presumption of conformity to established Ameri- 
can usage is not rebutted by anything to be found in the constitution. 

This is no proposal, therefore, to proceed in a manner differing 
from that laid down in the constitution, but is an argument to show 
that, the necessity being recognized, the general assembly should 
call a constitutional convention, that nothing in the constitution 
forbids or interferes with this course, and that it would be strictly 
in consonance with established American usage. 

Logically the argument goes further and is — that no constitu- 
tion limiting the power of the majority of the people to make and 
alter their constitution of government can prevent a majority of 
the people from doing so w^henever necessity demands. 

It so happens that in two states of the Union the constitution 
has been changed in a manner different from that provided in the 
previous constitution, i.e., Delaware, in 1791 ; and Maryland, in 1850. 
The defence offered for this course is most able and is entirely 
convincing. In 1858, Senator Bayard, of Delaware, father of the 
late senator, secretary of state and ambassador Bayard, contended 
in the senate of the United States that the people of Delaware had 
an inherent undefeasible right to change their constitution as a 
majority might deem wdse. (See Appendix to Vol. 37, Cong. Globe, 
1881.) He took the broad logical ground that a majority cannot 
be restrained, by restrictions in the constitution, from changing 
their fundamental law when and as they please. He held that 
the right to change is included in the right to organize, and that 
both can be exercised at any time by a majority. The right to 
organize is the right of the majority to govern and precludes any 



power in the majority that organizes to render the government 
unalterable except by more than a majority, " because such a re- 
striction is inconsistent with their own power to form a govern- 
ment, and is at war Avith the very axioms from which their own 
power to act is derived." If a majority of the people has not the 
power to make a constitution binding forever or for a specific term 
of years, how can it have the poAver to make it bindiog forever 
unless changed by more than a majority? Whence can be de- 
rived the notion that a majority at smy one time has more poAver 
than a majority at any other time? 

Hon. Eeverdy Johnson, United States senator from Maryland, 
wTote in part as folloAvs, in 1864, concerning the action taken by 
the people of Maryland in changing their constitution in a different 
manner from that prescribed in the former constitution : 

" No man denies that the American principle is Avell settled that all govern- 
ments originate Av^ith the people and may, by like authority, be abolished or 
modified ; and that it is not A^4thin the poAver of the people, CA^en for themselves, 
to surrender this right, much less to surrender it for those Avho are to succeed 
them." 

A iDroAdsion in any of the constitutions of the United States 
limiting the iDOAver of the majority to alter it Avould be simply void. 

But it will be asked, if this be so, how can we give effect to 
Article XIII of our constitution providing for the adoption of 
amendments by a three-fifths vote only ? Is not this a limitation 
upon the poAver of the people to make and alter their constitution 
of government ? 

It can only be defended upon the ground that it relates only to 
amendments and not to an entire change of the constitution ; that 
the framers had this in mind AAdien they drafted the instrument, 
and that it was intended to prevent the adoption by a majority 
only, Avhen perhaps only a light A^ote might be cast, of an amend- 
ment or amendments not really coming from the people directly, 
but suggested or initiated only by their servant, the general as- 
sembly. 

But this is rather an excuse for the clause than a defence of it. 
Indeed, on principle it cannot be defended. It is always a mistake 
to proA'ide, directly or indirectly, that a constitution can not be 
rewritten by a majority and that an amendment can only be made 
a part of the constitution by more than a majority. The result 
will be that the party in power will play fast and loose with the 



10 

power thus put into their hands, and Avill nse the one method or 
the other according to their preference for or their opposition to 
the particular measure proposed. If they favor it, they will sub- 
mit it to the Yote of the electors in the way the easiest to carry it, 
that is, in the way requiring" the least number of votes. If they 
oppose it, they will submit it in the way requiring the greatest 
number of votes to carry it into effect. Thus, under the guise of 
an amendment to the constitutioD, the party in power in this 
State not being particularly desirous that the measure should be 
adopted, has twice submitted to the electors of this State during 
the last year a revised constitution. It was an amendment to the 
existing constitution only as a legal fiction. In reality it was a 
new constitution as its title shows. Being submitted, however, as 
an amendment to the existing constitution, under the provisions 
of Art. XIII, it required a three-fifths vote, and this it failed to 
receive either time it was voted on. Strangely enough, this differ- 
ence between the means of adopting a new constitution and an 
amendment to the constitution was exactly reversed in this " Re- 
vised Constitution" lately voted down. Article XIII, section 1 
provides that amendments, after proposal by the votes of two- 
thirds of the members of both houses of two successive general 
assemblies, shall become a part of the constitution if approved by 
a majority of the electors voting thereon, while section 2 provides 
that no revision or amendment agreed upon by a constitutional 
convention shall take effect until submitted to and approved by 
three-fifths of those voting thereon. That is to say, the expressly 
reserved right in Article I, section 1, of the people " to make and 
alter their constitution of government" was to be so restricted that 
when ascertained through the act of the people by their delegates 
in convention assembled (the most direct and explicit expression 
of the sovereign will) it was to be allowed to go into effect only 
when apiDroved by three-fifths of those voting thereon ; but the 
will of the people's servant and agent, the general assembly, was 
to take effect when approved by a majority of those voting there- 



on 



The result of such a system would be that if the party in power 
wanted the particular change to become law they would carry it 
through as an amendment, even if it amounted to a series of 
amendments enough to make it a new constitution. But if they 
should not want the particular change or changes carried into 
effect it would be more easy to defeat it or them by the vote of a 



11 

majority of adverse electors, upon its submission as a revision or 
amendment of tlie constitution under section 2 of Article XIII. 

Constitutions are too sacred to be framed so that they can be 
juggled with in this Avay by a political machine. The obvious 
way to prevent this is to provide that revisions and amendments, 
whether through a constitutional convention or the initiative of 
the general assembly, shall become part of the constitution when 
approved by a majority of those voting thereon. 

This is also in accord with the fundamental principle of all 
Anglo-Saxon government that the majority rules when its will is 
ascertained through the forms prescribed to this end. This is 
plainly what is meant by Washington in his language cited in and 
made a part of our constitution, Article I, section 1, " but that the 
constitution which at any time exists, till changed by an explicit 
and authentic act of the whole people, is sacredly obligatory upon 
all." When a majority of the electors voting thereon vote to ap- 
prove a revision or an amendment of a constitution, submitted by 
a constitutional convention consisting of delegates duly elected, 
or submitted by a general assembly duly elected, this is a change 
by an explicit and authentic act of the whole people. And it is 
submitted, that while the people can limit the power of the gen- 
eral assembly to propose amendments by requiring a three-fifths, 
or two-thirds, or a unanimous vote, no limitation can be imposed 
upon the right of the people to themselves make and alter their 
constitution of government by their explicit and authentic act, 
and by the usual majority. 

The only conceivable limitation would be one providing that 
no change in the constitution (whether amendment or revision) 
can be made unless the majority voting for it is a majority of all 
the electors. There is room for argument that it would be proper 
to exact the approval of such a majority in such an important 
political affair as a change in the fundamental law. But although 
possible, no State has yet made this requisite. 

It will be urged, however, that jDrovisions requiring a three- 
fifths majority, two-thirds majority, or other majority amounting 
to more than 50 per centum and one vote, are proper and desira- 
ble to prevent hasty action and ill-considered changes in the or- 
ganic law. Such a claim involves a want of faith in the majority, 
inconsistent with faith in our American system of government. 
If government by the majority when the will of that majority is 
ascertained under the forms of law provided for that purpose is 



12 

not to be relied upon, but needs such checks as these, then we 
might as well abandon our democratic form of government. 
Rather let us be consistent and thorough in our faith in that gov- 
ernment, and in practice let us put our faith into full force and 
effect. Can it be that in England faith in such a government is 
more real and thorough -going than it is in the United States? 
For there, without even the safeguards of any written constitution 
as usually understood, the majority rules. 

When we take into account these additional safeguards against 
ill-advised or hasty changes in the organic law, in our written con- 
stitutions, this hesitation about trusting the majority with full 
l^ower over the making and altering their own constitutions of 
government is irrational, illogical, due to want of faith in our sys- 
tem of government, and should no longer be tolerated. In this 
State it is a relic of the polic}^ of the adherents of the old charter 
to minimize so far as possible the adoption of a democratic form 
of government. 

Although they put down Dorr, the fundamental principles he 
contended for Avere right, though some of his methods were wrong. 
His chief error was in appealing to arms. The force of an enlight- 
ened public opinion compelled the adoption of his principles, but- 
still, while surrendering in the main, the land-owners, constituting 
the charter party, managed to prevent the complete adoption of the 
principle that the majority shall rule when their will is ascertained 
in a lawful, explicit, and authentic manner. It is time now, casting 
timidity aside, to adopt the principle in its entirety. 

To deny it is necessaril}?- to establish in its place an oligarchic 
form of government. 

If a three-fifths or two-thirds majorit}^ is necessary to effect a 
change, then the power is in the minority of two-fifths or one- 
third to prevent it. This is inconsistent with the provision. Art, 
IV, Sec. 4, of the constitution of the United States, guaranteeing 
to every State in the Union a republican form of government : that 
state has not a republican form of government where two-fifths or 
one-third, and one, can prevent three-fifths or two-thirds less one, 
from making or altering their constitution of government. A 
republican form of government means a government in which the 
majority governs. 

That our forefathers intended the majority should rule is evi- 
dent from an examination of their compacts of government. 

That of Providence of 1637 is : 



13 



"We, whose names are liereimder, desiring to inhabit in the town of Provi- 
dence, do promise to subject ourselves, in active or passive obedience, to all such 
orders or agreements as shall be made for public good of the body, in an orderly- 
way, hy the major assent of ihe present inhabitants, masters of families, incorpo- 
rated together into a town fellowship, and such others whom they shall admit 
unto them, only in civil things." 

(I R. I. Col. Recs. 14.) 

That of Pocasset or Portsmouth : 

" The 7th day of the first month, 1638. 
We whose names are underwritten do here solemnly in the presence of Jeho- 
vah incorporate ourselves into a Bodie Politick and as he shall help, will sub- 
mit our persons, lives and estates unto our Lord Jesus Christ, the King of Kings 
and Lord of Lords and to all those perfect and most absolute lawes of his given 
us in his holy word of truth, to be guided and judged thereby.— Exod. 24, 3-4. 
2Cron. 11, 8, 2 Kings 11, 17." 

William Coddington (and 18 others). 
(1 R. I. Col. Recs. o2.) 

The second one at Portsmouth : 

" Aprill the 80th 1689. 
We, Avhose names are under [Avritten doe acknowledge] ourselves the legall 
subjects of [his Majestic] King Charles, and in his name [doe hereby binde] our- 
zelves into a civill body politicke, unto his lawes according to matters of justice. 

Will'm Hutchinson (and 28 others). 

Aprill 30. 1639 

According to the true intent of the [foregoing instrument wee] whose names 
are above particularly [recorded, do agree] Joyntly or hy the major voice to g 
[overne ourselves by the] ruler or Judge amongst us in all [transactions] for the 

space and learme of one [yeare, he] behaving himselfe according to the 

t [enor of the same]." 

(1 R. I. Col. Recs. 70.) 

That of Newport (made before they moved from Pocasset). 

"Pocasset. On the 28th of the 2d [month] 1639. 
"It is agreed by us whose hands are underwritten, to propagate a Plantation 
in the midst of the Island or elsewhere : And doe engage ourselves to bear 
equall charges, answerable to our strength and estates in common : and that our 
determination shall be by major voice of Judge and elders : the Judge to have a 
double voice." 

Present. Wm. Coddington, Judge (and eight others.) 
(1 R. I. Col. Recs. 87.) 

That upon the union of the island towns of Portsmouth and 



14 

Newport, being the General Court of Elections for Aquidneck, 
held at Portsmouth, 1641, for the two island towns : 

"It is ordered and unanimously agreed upon that the Government which this 
Bodie Politick doth attend unto in this Island and the Jurisdiction thereof in 
favor of our Prince, is a DEMOCRACIE, or Popular Government, that is to sa}', 
it is in the Powre of the Body of Freemen orderly assembled or the major jxtrt 
of them, to make or constitute Just Lawes by which they .will be regulated and 
to depute from among themselves such ^Ministers as shall see them faithfully ex- 
ecuted between ]Mau and Man." 

(1 R. I. Col. Recs. 112.) 

The charter of 1643-4 provides ... 

" Together with full Power and Authority to rule themselves and such others 
as shall hereafter inhabit within an}' Part of the said Tract of land by such a 
Form of Civil Government as by voluntary consent of all. or the greater Part of 
them, they shall find most suitable to their Estate and condition : and for that 
End to make and ordain such Civil Laws and Constitutions and to inflict such 
punishments upon Transgressors and for Execution thereof, so to place and dis- 
place Officers of Justice as they or the greatest Part of them shall by free Consent 
agree unto. Provideded nevertheless that the said Laws, Constitutions and Pun- 
ishments for the Civil Government of the Said Plantations be conformable to 
the Laws of England, so far as the ZSTature and Constitution of the place will 
admit." 

(1 R. L Col. Recs. 148 at 14.~,.) 

The charter of 1663 provides that the inhabitants already 
planted and settled in the colony, and all who hereafter go to in- 
habit it, and all their children " shall have and enjoye all liberty es 
and immunities of ffree and natural subjects within any the do- 
minions of vs, our heires or successors, to all intents construc- 
tions and purposes whatsoever, as if the}' and ever}^ of them, were 
borne within the realme of England." 

(2 E. I. Col. Eecs. 3 at 18.) 

Among these " libertyes and immunities " is that of government 
by the majority. 

At the session of the first general assembly at Portsmouth, 1647, 
the following was adopted : 

"For the Province of Providence." 

"It is agreed by this present Assembly thus incorporate, and by this present 
act declared, that the forme of Government established in Providence Plantations 
is DE3I0CRATICALL, that is to say, a Government held by y« free and volun- 
tarie consent of all, or the greater parte of the free Inhabitants." 

(1 R. I. Col. Recs. 156.) 

(The portions in brackets are words worn away in the originals. 
The italics are ours.) 



15 

See, (p. 46), the charter granted to the town of Providence by 
the general assembly in 1648. And lastly, this right of the majority 
to rule is reserved in Article I, section 1, of the constitution now 
in force. 

It will be seen from this survey that all the compacts of govern- 
ment ever framed in Rhode Island have provided for government by 
the majority, most of them in express words. The comparatively 
new doctrine that two-fifths can defeat the will of the majority 
has no foundation or support in the history of the State. 

In Smith v. Nelson, 18 Yt. 511 at 550 (1846), it was decided that 
although voluntary associations make constitutions and pass by- 
laws that they declare are not to be altered except in a certain 
way or manner, as by the concurrence of two-thirds or at two 
different meetings, &c., " yet their constitution and by-law^s may 
at any time be altered or abrogated by the same power which 
created them, and the vote of any subsequent meeting, abrogating 
or altering such constitution, though passed only by a majority, 
has as much efficacy as a previous vote establishing them. A 
constitution for a voluntary society may be proper, as an organiza- 
tion, but it has none of the powers or requisites of a constitution 
in political bodies, which emanates from a higher power than the 
legislature, and always is supposed to be enacted by a power su- 
perior to the legislative, and hence is unchangeable except by the 
body which established it ; but that body can change it at pleas- 
ure " — by which is meant that the constitution cannot be changed 
by the legislature, but the people that made the constitution can 
likewise destroy it ; and this implies the power to set aside by a 
majority a self-imposed limitation, such as that a change shall only 
be made by a three-fifths vote, or by a nine-tenths vote, or by a 
unanimous vote, or after ten years, or one hundred years, or, to 
suppose the most extreme case, that it never should be amended. 

So the general assembly, by a majority vote, may adopt a rule 
that it shall pass laws only by a three-fifths vote. But the same 
majority that passes such a rule can at any time set it aside. Were 
the provision one fixed by a higher power, were it in the constitu- 
tion of the State, the general assembly could not set it aside. But 
as a self-imposed limitation it is repealable by the same power 
that imposed it and by the same majority. So, if a clause in a 
State constitution declaring that any vote more than a majority is 
necessary to change the constitution, it w^ould be a self-imposed 
limitation that could be set aside by the same power that imposed 



16 

it, and that power is the majority of the electors as the represen- 
tatives of the sovereign will. Were the provision one fixed by a 
hig-her power, were it in the constitution of the United States, it 
could only be set aside by the people of the United States in the 
mode provided for amending the constitution of the United States. 
It would no longer be a self-imposed limitation, subject to repeal 
by the same power that imposed it ; it would be a limitation im- 
posed by a higher power and subject to repeal only by that 
higher power. 

Of course a sovereign body, so-called, can restrain itself. It 
does so constantly. Webster, in the celebrated case of Luther v, 
Borden, 7 How. E. 1, 6 Webster's Works, 217, said : 

"But tlie people limit themselves also in other ways: * * * They limit 
themselves by all their constitutions in two important respects : that is to say. 
iu regard to qualifications of electors, and in regard to the qualificatious of the 
elected. In every state and in all the states the people have precluded themselves 
from voting for everybody they might wish to vote for ; they have limited their 
own right of choosing. . . . They have also limited themselves to certain 
prescribed forms for the conduct of election." 

But all these restrictions can be set aside by the same power 
that set them up. Wherein would a provision requiring more than 
a majority vote differ in this respect? 

New Jersey set aside the law giving women the suffrage. New 
York adopted a new constitution in 1821 that excluded negroes 
from the suffrage they had hitherto enjoyed. Why cannot a pro- 
vision requiring more than a majority vote be likewise set aside? 
There was no vested right to the suffrage that prevented taking it 
aw^ay from those to whom it had been granted by the vote of the 
majority. In the same way there would be no vested right to 
require more than a majority vote that would prevent the abolition 
of this provision by the vote of the same majority that established 
it. 

No state in the Union has yet ordained, however, that the major- 
ity shall not make and alter their constitution of government. The 
nearest approach to it is the limitation in Art. XIII of the con- 
stitution of this State, and this is distinguishable as only a limita- 
tion providing that more than a majority shall be requisite to 
adopt an amendment initiated by the general assembly and to be 
submitted to the electors only after it has been approved by a 
majority of all the members elected to the two houses of two suc- 
cessive general assemblies. 



17 

The commissioners who revised the constitution in 1897 took a 
strange fancy to this most undemocratic idea of limiting the will 
of the people, for they provided in Article XIII, section 2, that no 
revision or amendment of the revised constitution submitted by 
them, agreed upon by any constitutional convention, should take 
effect until submitted to the electors and approved by three-fifths 
of those voting thereon. 

This is an attempt to deny the right of the people to recast their 
political institutions, whatever may be the necessity, and this, as 
Jameson on Const. Convs. 546, points out, cannot be done. This 
alone were reason enough for the rejection of the revised con- 
stitution. It is a bad policy to attempt by abstract rules of law 
to prevent great organic movements of the ]Deople acting through 
a majority of the electors. In case of conflict, something must 
give way, and it is hardly likely to be the majority. For the un- 
derlying principle of all English and American government is that 
the majority shall rule. It is not those who assert this principle 
that are asserting something revolutionary. It is those who deny 
it, who fear the rule of the majority, who would limit it, who 
assert that a present majority can deprive a future majority of the 
same power they enjoj^ who assert that a majority for the time 
being can prevent a future majority to-morrow, next year, next 
century, throughout all the centuries to come, to the end of time, 
from making or altering their constitution of government that are 
asserting a revolutionary doctrine, unknown to the framers of all 
the compacts of governments of town and State ever framed in 
Khode Island, and elsewhere, except to the framers of the restric- 
tion placed in the constitution of 1842 (Art. XIII) limiting the 
power to accept an amendment proposed by the general assembly, 
unless it receive three-fifths of the votes of the electors voting 
thereon, and the framers of the lately rejected " Eevised Constitu- 
tion." But time can confer no sanction on such a mischievous, 
undemocratic doctrine. That the so-called Law and Order party 
in 1842, afraid to trust the new electorate forced upon them against 
their will, put into the constitution a clause, the effect of which is 
supposed to be to destroy the expressly stated right of the people 
to make and alter their constitution of government by the usual 
majority vote, confers no greater authority or sanction upon such 
a revolutionary scheme now than it had then, and it clearly had 
none then. Yet, strange to say, fifteen able, educated men were 
found in this State who agreed to extend the scope and operation 



18 

of this dangerous and oligarchic principle. It is most extraordi- 
nary that fifteen representative men should have agreed on a prop- 
osition subversive of the very foundations of our political being. 

Another excellent reason for the defeat of the revised constitu- 
tion is found in the omission to impose new and necessary re- 
straints upon the powers exercised by the general assembly. 

It is well known to all wdio have studied the history of this 
State that the general assembly has always exercised enormous 
powers. This resulted from the great powers conferred upon this 
branch of the government under the charter granted by Charles 
II, in 1663, and the limited powers conferred upon the executive. 
The general assembly had judicial powers as well as legislative 
poAvers conferred upon it under this charter, and the dual nature 
of the general assembly continued until the constitution was 
adopted in 1842, and even then the exercise of judicial power by 
the general assembly was not given u}) until it was compelled to 
do so by the decision of our supreme court. (See Taylor v. Place, 
4 E. I. 324.) This assumption of judicial power by the general 
assembly was of ancient growth, and its surrender, after the adop- 
tion of the constitution, was difficult. 

The dread of centralized ]30wer Avas one of the principal motives 
that delayed until 1647 the adoption of the first or parliamentary 
charter, granted in 1643 by the committee of the long parliament, to 
the three original colonies of Providence, Portsmouth, and Newport. 
WarAvick was admitted when this charter was accepted, although 
not named in it, this colony not being founded until 1642-3. These 
four original colonies or settlements, acquisitions in the east, and 
the region knoAvn as Narragansett constituted what is now the 
State of Ehode Island and Providence Plantations, and must not 
be confounded with the present towns or cities with the same 
names, the other towns of the State having been carved out from 
them, or erected in consequence of the settlements that greAv up 
outside their limits. 

May 4, 1776 this State passed its own declaration of independ- 
ence, followed two months latter by the great Declaration of In- 
dependence. 

This State continued until 1842 to g-overn itself under the forms 
of the royal charter, although Avithout any formal sanction by the 
people. From May 4, 1776, to November 5, 1842, a period of more 
than sixty-six years, Rhode Island like England was under an 
unwritten constitution. As this is denied to be the fact by many. 



19 

it is well to point out what those say who are competent to pass 
judgment upon it. 

In Wilkinson v. Leland, 2 Peters 627 (1829), Story, J. said : 
" Rhode Island is the only State in the Union which has not a 
written constitution of government, containing its fundamental 
laws and institutions." 

Jameson (on Const. Convs. 4th ed. 83) says : " Connecticut and 
Rhode Island had unwritten constitutions at the time of the Revo- 
lution, modelled in general after that of England, which continued 
in force until 1818 and 1842, respectively." 

Cox, in his scholarly book on Judicial Power and Unconstitu- 
tional Legislation, 177, says: "It must here be recalled by the 
reader that the constitution of Rhode Island was, in 1786, an un- 
iDTitten constitution, ascertained from history, not from the in- 
spection of a written fundamental law denominated a constitu- 
tion. Cf. Luther v. Borden, 7 How, 35, by Taney, C. J." 

The point, although seemingly of thereoretical importance only, 
is very important in its bearings upon the " Dorr War" and its 
causes, when that incident is studied and its history is written by 
a competent hand. 

The following year, 1787, the superior court of North Carolina, 
in Bayard v. Singleton (Martin's Reps. 1st Div. 48, 2d ed. 1, p. 
42), held that the legislature could not pass a law the effect of 
which would be to alter the constitution of the State, without de- 
stroying the foundation of their own legislative authority. 

This is what the general assembly of Rhode Island did when it 
severed the connection with the mother country May 4, 1776. It 
destroyed thereby the foundation of its own authority, and, as the 
act was and ever since has been acce^Dted by the people, Rhode 
Island was thenceforth, until 1842, under an unwritten constitu- 
tion. 

We must accept this conclusion or hold that the act of May 4, 
1776, was unconstitutional and void. 

As Rhode Island, therefore, had no written constitution in the 
proper sense of that term, no constitution with a sanction, it was 
open to the people in 1842 to change their form of government as 
they pleased. It needed only that it should be the action of the 
majority and should become the government de facto. The ap- 
peal to arms by Dorr was a mistake. But after the suppression 
of this appeal to arms the general assembly granted what Dprr 
asked. A new constitution was framed, those who before were 



20 

excluded were allowed to take part Id voting- upon its adoption. 
By their votes the demands of Dorr were accepted by a majority, 
proving that the Dorrites were in a majority and that a political 
mistake had been made in not granting their demands sooner. 
Dorr's fame as a defender of the rights of the people was estab- 
lished, although not yet recognized as it should be. The time is 
coming when Dorr will be looked upon as one of the greatest men 
we have had. 

In Rhode Island as in Connecticut the governor was not a crown 
officer, and hence the revolution caused no break in the office of 
the executive ; and the provisions of the royal charter were liberal, 
so that the general assembly exercising the powers conferred upon 
it by the charter, and taking on new powers when necessity arose, 
continued the government without difficulty until the " Dorr war " 
in 1^41. Had the party in power conceded at the outset what the 
Dorrites asked for, this government might have continued indefi- 
nitely. 

The result of independence was to increase the powers, already 
predominant, of our general assembly. One of the first checks 
to this power was the decision in Trevett v. Weeden, in 1789, that 
trial by ]uTy being a part of the law of the land, an act of the 
general assembly denying that right, in case of refusal to take 
paper money for goods sold, was null and void. The case is of 
great importance because it was the precursor of the since ac- 
cepted doctrine that the judiciary can declare an act of the legisla- 
ture unconstitutional when the question is involved in an actual 
litigated case. 

"The first reported American case in which a j udicial judgment rejected a 
legislative act as void because unconstitutional, was Trevett v. Weeden, which 
arose in Rhode Island where the then constitution was not written." 

(Cox. Judicial Power and Unconst. Legn. 177 and 160. See also Cooley, Const. 
Limitations, 5th ed, 194, and the excellent report of this case in 1 Thayer, Cases 
on Const. Law, 73.) 

The fact that Rhode Island was governed under an unwritten 
constitution made it easier for the court to take the position it 
did, because it was not restrained by the fetters of a written con- 
stitution but could follow to their logical conclusions the intima- 
tions in earlier English cases that led logically to the conclusion 
they reached. See Cox's interesting examination of this impor- 
tant case. 



21 

Under the constitution adopted in 1842 the usual division into 
three coordinate branches, the legislative, the judicial, and the ex- 
ecutive, was made. So firmly fixed in the minds of Rhode Island- 
ers was the notion that the general assembly could do what it 
pleased, that it continued for years, notwithstanding the provi- 
sions of the constitution, to exercise judicial powers. It granted 
new trials of cases decided in the courts, heard and decided peti- 
tions for divorce, granted stays of judgment, etc. 

In the celebrated case of Taylor v. Place, 4 R. I. 324, 1856, the 
supreme court put an end to this unconstitutional exercise of 
power by the general assembly. The decision in this case, by 
Ames, our greatest Rhode Island judge, should be studied by 
everyone who wants to understand the history of this State. To 
many the idea seemed preposterous that three men, elected to the 
bench by the general assembly, should dare to assert the uncon- 
stitutionality of an act by the general assembly that put them on 
that bench. 

The cases of Trevett v. Weeden and Taylor v. Place, landmarks 
in the constitutional development of Rhode Island and the two 
most important cases in its political history, show emphatically 
the weak point in its government, the too great power of the gen- 
eral assembly. Any attempt to remodel the constitution must 
recognize this fact and remedy it. It renders it impossible to 
revise the constitution by proceeding under Article XIII to adopt 
a new constitution as an amendment to the existing one, because 
this requires the assent of a majority of all the members of each 
house of two successive general assemblies, and not even the 
usual majority of any one general assemblj^^ nor of either house, 
can be expected to approve any measure, much less a radical re- 
vision, that will impose limitations upon the power of the general 
assembly. No organized body of men can be expected to take 
part in restricting its own powers, and our general assembly, Avitli 
well established power, the result of the growth of power and the 
exercise thereof for two hundred and fifty years, is no exception 
to this rule. It is plain, therefore, that in order to place the nec- 
essary restrictions upon the power of the general assembly, re- 
course must be had to a constitutional convention. There is 
another excellent reason for this. A revised constitution adopted 
as an amendment to the existing constitution under Article XIII 
cannot be adopted except by the vote of three-fifths of those vot- 
ing- thereon. But if a constitutional convention be held under 



22 

the exercise of the right of the people to make and alter their con- 
stitution of government expressly reserved in Article I, section I, 
the new constitution submitted to the electors by such a conven- 
tion would become the law of the land when approved by a ma- 
jority of those voting thereon. 

That a constitutional convention should be called, follows also 
from the well established principle (Jameson on Const. Con v. 211) 
" that whenever a constitution needs a general revision, a conven- 
tion is indispensably necessary." Tljat our constitution needs a 
general revision is attested by the well recognized consensus of 
public opinion and by the oflficial declaration by the general as- 
sembly passed January 27, 1897, already cited, as follows : 

" Whereas, there is a widespread feeling among the people of the State that the 
eonstitution should be carefully and thoroughly revised, and such changes as 
may seem to be advisable, in view of the changed condition of affairs since it 
was adopted, properly and carefully prepared." 

There is still another reason why a convention should be called 
to revise the constitution. Safeguards are needed against the 
encroachments of a new danger, undreamt of by the framers of 
1842 — the power, unknown to the law, of the political machine 
under the control of unprincipled men, of the " boss " who controls 
them, and of those behind him. This new source of danger must 
be recognized and guarded against. 

"We assume that we are living in a republic, a government of the people, by 
the people and for the people ; a government in which responsibility follows 
privilege, or is that upon which privilege depends for existence, undivided re- 
sponsibility, which no citizen can shirk or evade. Have we a wise, good, benefi- 
cent government, the people are happy. Is the government corrupt, the people 
suffer, but from their own folly. One of the most deplorable as well as dangerous 
tendencies of the age is the surrender of office-holding and the selection of holders 
of offices to professional oflSce seekers and political rings. It is a question of 
doubt whether a government under the control of a boss or combination of bosses 
is republican. It is a serious question if the government of some of our States 
and many of our cities is not to-day an oligarchy. The necessity for the organi- 
zation of the voters into parties, that certain distinctive and vital principles, 
upon which our people are divided, as their business or peculiar prejudices may 
necessitate, shall be made operative, furnishes the opportunity for the profes- 
sional politician. Generally barren of principle, and with adjustable convictions, 
he is too often successful by the assistance of honest men, whose good nature 
and unsuspiciousness betray them into opening the gates, and the Greeks have 
entered Troy. The dictation of the boss forbids the consideration of the interests 
of the country, denies to the party he claims to represent the protection and con- 



23 

servation of its avowed principles, bends all the power of his personal machine 
to his own individual success and the rewarding of those whose influence and 
active cooperation he needs. Failure or neglect to placate the boss has tied the 
hands of the executive in city, State, and nation, blocking legislation and deny- 
ing the representation of States in the congress of the nation. No longer is this 
tremendous power exercised in secret. The boss issues his fiat from the house- 
top, and the people, not realizing their danger, supinely yield. The undisguised 
purpose of the professional politicians, their source of power and cohesive force, 
is the desire for office and for office as a means of gain. How rarel}'- does the 
question of ability or fitness to perform the responsible duties imposed enter into 
consideration w^hen a candidate is to be selected for any position ! Party loyalty, 
availability, pull, party service, is the shibboleth. — {From I. A. Basseif s Memorial 
Day Address, May 30, 1899. ) 

These are facts that cannot be ig-nored. They must be recog- 
nized, met, and overcome. To do this they must be discussed. 
To speak of them with bated breath, to tell privately how expla- 
nation of the necessity for a measure pending before the general 
assembly made to a member was met by the enquiry : " What 
does the old man think of it ? " is not enough. If the price of lib- 
erty is eternal vigilance, w^e must be vigilant in guarding against 
new dangers as they arise. This new danger is a vital one ; is 
common or becoming common in all the States of the Union, and 
can only be met by such new safeguards as nothing but a consti- 
tutional convention, with the after confirmation of the electors, 
can put into a new constitution. 

It were folly for us in Rhode Island to deprecate the existence 
of a Piatt or a Croker in New York, a Quay in Pennsylvania, a 
Gorman in Maryland, and so on through the whole infamous list, 
while ignoring the system of machine politics and boss rule in 
full operation in our own State. We must meet it and overcome 
it. We must amend our constitution to meet this new" danger, 
and above all w^e must help to raise the sense of civic pride and 
municix^al responsibility to a higher plane of political morality 
that will help to break up the infamous system. 

In their advisory opinion of March 30, 1883, (14 R. I. at p. 654) 
the judges erred in saying that any new constitution which a con- 
vention could form w^ould be a new constitution only in name. 
This proceeds upon the assumption that the bill of rights is a 
finished product, and that nothing can be added to it. But the 
bill of rights did not spring into being at one stroke. It was the 
result of centuries of effort to right centuries of wrongs. It rep- 
resents the results of the conflict of ages between the powers 



24 



that make for good and the powers that make for evil. As to each 
right secured there was a time when a wrong existed without 
legal remedy to prevent it. Each victory for the right became a 
new clause in the bill of rights. 

No greater mistake could be made than to suppose that this con- 
flict is ended and the bill of rights is finished. The year before 
the habeas corpus act was passed it might equally well have been 
claimed that the bill of rights contained " the great historic safe- 
guards of liberty and property," and yet the next year added one of 
its most important provisions. It is not thus that liberty won is to 
be preserved, nor must we think the contest is ended. In the 
conflict between two rival powers, no state of permanent equili- 
brium can be long maintained. Ever watchful, the powers that 
make for evil, repressed in one direction, seek new directions, 
manifest themselves in new forms and must be met in their new 
forms, if our rights to liberty and property are to be maintained. 
Machine politics and boss rule are the present new forms of the 
powers that work for evil, and must be met, fought, and overcome. 
The victory will be recorded as a new clause in the bill of rights, 
as former victories were thus recorded. The people that rests 
serenely upon its old guaranties to liberty and property, without 
meeting and overcoming the new forms of assault thereon, will 
soon begin to lose what their more sturdy forefathers painfully 
acquired. 

It is therefore impossible to make the changes that have become 
necessary in our constitution, whether they be called amendments, 
or a revised constitution, or a new constitution, except through a 
constitutional convention, for the reasons already set forth, and 
that may be summed up in one general characterization : the ne- 
cessity for restrictions upon the powers of the general assembly 
and augmentation of the powers of the executive and judiciary. 

The difference between the right of the people to make and 
alter their constitution of government under Article I, section 1, 
and the right of the general assembly to initiate amendments 
that shall become operative only when sanctioned by the people 
according to the peculiar and unusual terms of Article XIII, 
goes, therefore, to the very root of the matter, and is not matter 
of form but of very substance. To ignore it, as the advisory 
opinion does, is but to contribute to the political subjugation of 
the people, to the exaltatiou of the general assembly, the agent of 



25 

tlie people, and to the making tliem the master instead of the 
servant. 

It is notorious to students of contemporaneous American politi- 
cal history that the political machines in many of our States have 
seized with avidity upon a new device for securing political plums 
for their followers. Claiming that towns and cities are creatures 
jof the State and may be controlled or even annihilated by the 
State, they claim, further, that the State may appoint officers to 
l^erform certain duties in the towns and cities, to be paid such 
salaries as the State may dictate, although the town or city is to 
have no control over these officers and protests against their ap- 
IDointment. In too many of the States the courts have maintained 
the legality of this course, sometimes through ignorance of their 
own political history and constitutional development, sometimes 
because the State is a new one, never had such a history and con- 
stitutional development as did the New England States and a few 
others, and, therefore, the ground put forward for such action has a 
better foundation. But we shall find in many of the cases denying 
the correctness of this theory, that the members of the court giving 
opinions adverse to the right of the State to appoint these officers, 
see plainly to what cause is due the theory that is set up that the 
State has the right to appoint these town and city officers, and 
they see that the allowance of the theory will result in the political 
enslavement of the towns and cities in this particular. See, for 
instance. People v. Hurlbut, 24 Mch. 44 ; State v. Moores, 76 N. 
W. Kep. 175 ; People v. Albertson, 55 N. Y. 50 ; State v. Denney, 
118 Ind. 382 and many other authorities therein cited. 1 Bryce 
Am. Com. 611, 612. Keport of Fassett Committee, 1891, 5 N. 
Y. Sen. Com. Rep. 459. At p. 13 this committee reports, speak- 
ing of the conditions existing and the assumption of power over 
towns and cities by the legislatures : " that local self govern- 
ment is a misnomer, and that consequently so little interest is felt 
in matters of local business, that in almost every city in the State 
it has fallen into the hands of professional politicians." Here 
we find the fertile source of loss of civic pride and the political 
.decadence of American cities. They are admitted to be the worst 
governed of all the civilized countries of the world. We can only 
improve them by incorporating in the constitution recognition 
of the right of all towns and cities to self-government in their 
own affairs, and this can only be done through a constitutional 
convention. 



26 

This brings us to the reasons why the commission appointed 
under authority of the resolution of 1897 submitted a revised con- 
stitution that failed to meet the approval of the people. It did 
not contain the necessary restrictions upon the powers of the gen- 
eral assembly. This was not the fault of the excellent commis- 
sion, but of the limitations imposed upon it in the very nature of 
the case. The commissioners well knew that the general assem- 
bly has too much power, and that new restrictions were needed 
upon its exercise. They were specifically pointed out to them, 
and drafts of clauses were submitted to them that would accom- 
plish the end desired. But they also well knew that their work 
must receive the approval of a majority of all the members elected 
to each house of two successive general assemblies before the 
electors could vote on it. They knew that it would be impossi- 
ble to secure such approval if they placed these necessary restric- 
tions upon the powers of the general assembly in it, and hence 
they omitted them. The result was a revised constitution that 
was satisfactory to the general assembly, but was not satisfactory 
to the people of the State. No new constitution will be satisfac- 
tory to them that does not embody these necessary restrictions 
upon the power of the general assembly. A constitutional con- 
vention composed of delegates elected by the people can alone do 
this, and their work can only be made the law of the land when it 
shall be submitted to the iDeople and accepted by the vote of the 
majority of the electors, these electors to include those who will 
become electors under the new constitution. Such has been the 
course pursued in the past, and there is no reason the same course 
should not be followed again. 

It will be claimed that it has been decided, whether rightly or 
wrongly it matters not, by the judges of the supreme court, that 
the general assembly has no power to call a constitutional conven- 
tion, and there is nothing to be done but to accept this decision 
and give up all attempts to procure a convention. 

This would be to ignore the thoroughly well recognized dis- 
tinction between an advisory opinion of the judges and an actual 
decision by the court in a litigated case. This is the common de- 
vice of those who, not wanting a constitutional convention, shel- 
ter themselves behind this false shield. Having such profound 
deference for the court, why do they not also defer to the court's 
own repeated declaration and recognition of the distinction 
pointed out ? 



27 

In Taylor v. Place, 4 R. I. 324 (1856), the same question came 
before the supreme court in a litigated case that the justices had 
previously given an advisory opinion upon to the governor. The 
court said : 

'■ This is the first time since the adoption of the constitution that this question 
has been brought judicially to the attention of the court. The advice or opinion 
given by the judges of this court, when requested, to the governor, or to either 
house of the general assembly, under the third section of the tenth article of the 
constitution, is not a decision of this court ; and, given as it must be, without the 
aid which the court derives in adversary cases from able and experienced counsel, 
though it may afford much light from the reasonings or research displayed in it, 
can have no weight as a precedent." (By Ames, C. J., at p. 362.) 

Upon the petition of W. Knowles for an opinion of the court, 
under Pub. Laws Ch. 563, sec. 6, April 20, 1876 (in 13 R. I. 9, July 
3, 1880), the supreme court of this State gave an advisory opinion, 
only the petitioners being represented by counsel. The court af ter- 
Avards had the same subject before them again, in an actual case, 
and, after a full hearing and argument on both sides, they re- 
versed their former opinion, giving as one of their reasons for 
doing so, the fact that the first case, above cited " was a petition 
for an opinion on a case stated, and was doubtless submitted with- 
out full argument or presentation of authorities ^ ^'' ^ ^ g^it 
we have no doubt that we should have decided the case differently 
if we had had before us, when we decided it, the same array of 
authorities which we have before us now." (See Allen vs. Daniel- 
son, 15 R. I. 480 at 482, March 5, 1887.) 

The supreme court of this State has therefore decided twice that 
its own advisory opinion is not conclusive when the same matter 
comes before the court as an actual contested case. 

This distinction has been recognized in many other courts and 
is admitted by all lawyers. Thus Kent, J., in 58 Me. 573, said : 

" It is true, unquestionably, that the opinions given under a requisition of any 
officer, or any department, have never been regarded as binding upon the body 
asking for them." 

Tapley, J., in 58 Me. 615, said : 

" We can only proceed in the investigation upon the views of the law apper- 
taining to the question as they appear to us upon first presentation, and antici- 
pate as well as we can the ground which may be urged for or against the 
proposition presented, never regarding the opinions thus formed as conclusive, 
but open to review upon every proper occasion." 



28 

In 72 Me. 542 at 562, Libbey, J., said, Walton, J., concurring- : 

" Inasmuch as any opinion now given can have no effect if the matter should 
be judicially brought before the court by the proper process, and lest, in declin- 
ing to answer. I may omit the performance of a constitutional duty, I will very 
briefly express my opinion upon the question submitted." 

English authority is to the same effect, and is of weight, be- 
cause it is from the English custom we have borrowed the system 
of asking the judges for their advice upon questions of law. Thus, 
for centuries, the king called upon the judges of England for their 
opinions. The answers of the judges to such questions are not 
and never have been looked upon as opinions in the sense of being 
judicial determinations that are binding and final, but as advisory 
opinions only, entitled to respect as opinions of men learned in 
the law, but as nothing more. Thus McQueen on the Appellate 
Jurisdiction of the House of Lords, p. 39, says : 

"It has been sometimes asked whether the opinions of the judges ought not 
to govern the decision of the house. They have never had that effect, even 
when unanimous, and it is not easy to see how they could so operate when conflict- 
ing and opposed. The house pays great regard to the opinions of the judges, es- 
pecially when concurrent. But the house cannot transfer to others the constitu- 
tional responsibility which attaches to the adjudication of causes in the court of 
last resort. The opinions of the judges, however, even though not adopted by 
the house, must always be expected to throw valuable light on the subject of its 
deliberations." 

Many other authorities to the same effect may be found in the 
able articles on " The Duty of Judges as Constitutional Advisers," 
by H. A. Dubuque, Esq., in 24 Am. Law Kev. 369, and by Prof. 
Thayer of the Harvard Law School, " On the Origin and Scope of 
the American Doctrines of Constitutional Law," in 7 Harv. Law 
Eev. 153. 

In one case the advisory opinion of the judges of a State 
supreme court on a question of law (8 Mass. 549) has been re- 
versed in an actual case, involving the same question, by the 
decision of the highest court of the land, the supreme court of the 
United States (12 Wheat. 19). It has never been contended nor 
decided that an advisory opinion is res judicata, and therefore 
binding, and is beyond change or reversal, or that an act of the 
general assembly contrary to the advisory opinion of the judges 
would be unconstitutional. It is time this specious and flimsy 
excuse for not doing what the general assembly has decided to be 



29 

necessary, were swept away. For by its resolution passed January 
27, 1897, already cited, the general assembly lias declared that the 
constitution should be thoroag-hly revised. The only way now 
left to accomplish this is through a constitutional convention. 
The general assembly should therefore pass an act at once, calling 
a constitutional convention, the result of whose labors should be 
submitted to the people, meaning thereby, of course, the vote of 
the electors, the representatives of the people in such a case. 

If the general assembly, lacking the courage to act, or doubting 
its own power, still hesitates, it should submit the question again 
to the judges with an opportunity, such as the judges themselves 
said they would be glad to have, to give more careful study to 
the subject, with an opportunity for the presentation of all views 
relating thereto, with full argument thereon and presentation of 
authorities, in order that the conclusions reached may merit the 
confidence, approval, and support of the people of the State. 

Should the general assembly deem either of these courses inad- 
visable, then it should submit to the electors, under the iDrovisions 
of Article XIII of the constitution, an amendment to the constitu- 
tion providing for the calling of a constitutional convention, which 
call should provide that the new constitution prepared by the con- 
vention shall go into effect if approved by a majority of the 
electors voting thereon, such electors to include those who will 
become electors under the provisions of such new constitution. 

But we shall be reminded of the maxim : " Expressio unius est 
exclusio alterius',' cited by the judges in their opinion, as decisive 
on this point. 

"I may observe that the method of construction summarized in the maxim 
' expressio unius exclusio alterius ' is one that certainly requires to be watched. 
Perhaps few so-called rules of interpretation have been more frequently misap- 
plied and stretched beyond their due limit. " 

(By Willis, J., in Colquhou ^.Brooks, 57 L. J. Q. B. 70.) 

"It is often a valuable servant but a dangerous master to follow in the con- 
struction of statutes or documents. The exclusio is often the result of inadver- 
tence or accident, and the maxim ought not to be applied when its application, 
having regard to the subject matter to which it is to be applied, leads to incon- 
sistency or injustice." 

(By Lopes L. J., in Colquhon v. Brooks, 57 L. J. Q. B. 439.) 

An express limitation upon the power of the general assemblj^ 
to propose amendments to the constitution (Art. XIII) is not, and 



BO 

cannot by any logical construction/ be construed into an implied 
limitation upon the power of the people to meet in convention, by 
delegates elected for that purpose, to make and alter their consti- 
tution of government. (Art. I. Sec. 1.) These are two different 
things, and a construction is to be favored that will give effect to 
both articles. This is no party question, but purely one of con- 
stitutional law, nor is any one proposing anything contrary to the 
constitution, but to give effect to the whole of the constitution. 
Blacksfcone *381, citing Cro. Eliz. 420, and 1 Yern. 30. This the 
advisory opinion of the judges failed to do, and to this extent the 
advisory opinion of the judges, failing, as it does, to give effect to 
both clauses of the constitution, proposes something not in accord 
with the constitution, and is, therefore, itself unconstitutional. 

A legislative construction had been placed upon this subject by 
these frequent calls for a convention issued by the general assem- 
bly. The question is a political one rather than a legal one, and 
therefore on both these grounds the judges might well have de- 
clined to express their opinion on it. 

Our forefathers would have been astonished indeed had it been 
foretold to them that by an implied construction, quasi-judicial 
only, of the section relating to amendments initiated by the general 
assembly their successors were to be deprived of the expressly 
stated right to make and alter their constitution of government. 

In their advisory opinion the judges converted an express grant 
of authority to an agent, i. e,, the general assembly, to initiate 
amendments, in one article of the constitution, into an implied re- 
straint upon the expressly stated right of another party in another 
article to do a different thing, i. e., to make and alter their con- 
stitution of government, thus setting up a new and unheard of 
rule of construction. 

There is but one proper application of the maxim in the case of 
our constitution, i.e., the expressly mentioned way in Article XIII 
of the manner in which the general assembly may propose amend- 
ments is an exclusion of any other way in which they can propose 
them. To that extent the application of the maxim " Exi^ressio 
unhis est exclusio alterius'' is sound. It is denied, however, that 
framing a new constitution by a convention is amending the exist- 
ing constitution. To use a homely illustration, the man who re- 
shingles his house repairs it, but he who pulls his old house to 
pieces and builds a new one, though he uses the beams and planks 
that were in the old house to build his new one with, adding such 



31 

new material as may be necessary, does not repair it — he builds a 
new house. 

The exercise by the people through a constitutional conyention 
of their power to make and alter their constitution of government 
under Article I, section 1, is an entirely different thing from the 
exercise of the power of the general assembl}^ to propose amend- 
ments to the constitution onlj^ in the expresslj^ limited way set 
forth under Article XIII. 

But what the membei's of the court held, in effect, in their ad- 
visory opinion, was that express power given to one party, (the 
general assembly, the agent) to do a certain thing (to pro^Dose 
amendments) in an expressly limited way (through action by a 
special majority of two successive general assemblies, their pro- 
posals to go into effect only when approved by a special majority 
of the electors) is an implied limitation upon the expressly stated 
power of another party (the people, the principal) to do another 
thing (to make and alter their constitution of government) in an- 
other way (by a constitutional convention). It would be difficidt 
to conceive of circumstances under which the application of the 
maxim could be more misplaced. 

Instead of applying the maxim in such a way as to exclude the 
possibility of a constitutional convention (by giving exclusive 
effect to Art. XIII and none to Art. I, Sec. 1) it would be more 
consonant with broad sound principles of construction to apply 
the maxim, under Art. I, Sec. 1, as reserving the absolute right of 
the peo^ole to make and alter their constitution of government, 
and as excluding smj restriction thereon under Art. XIII. The ex- 
pression of the right of the people to make and alter their con- 
stitution of government, the expressio unius, is exclusive; and, 
therefore, it is the exclusio of any other mode, leaving to the 
general assembly the ordinary legislative power to call upon the 
people to meet in convention when necessitj' demands. 

But the maxim has no real application, because Art. XIII relates 
to a different thing. It merely provides a method by which the 
agent, the general assembly, may initiate amendments — by pro- 
viding a special majority of two successive general assemblies 
instead of the usual majority of one general assembly, and a 
special majority of the electors to carry the initiative of the general 
assembly into effect, instead of the usual majority. The maxim 
does not apply, because the expressio imius is not the same in the 
two articles. As Jameson says (p. 605, 4th ed. Const. Convs.), the 



32 

maxim does not apply, "because the people could not do the 
saine thing in a different way, it does not follow that they could 
not do a different thing in a different way." Therefore a limitation 
upon the power of one party to do one thing in one way is no 
limitation upon the power of another party to do another thing in 
another way. Especially is this true when it is x^ossible to adopt 
a construction that will give full force and effect to both provis- 
ions of the constitution. The objection to the construction 
adopted by the judges is that it finds an implied limitation in 
Art. XIII, therefore Art. XIII is exclusive of all other methods, 
and hence denies all effect to the expressly stated power of the 
people to make and alter their constitution of government, under 
Art. I, Sec. 1. It is not thus constitutional guarantees are to be 
construed. 

- Contending that the general assembly has come to exercise too 
much power and that a constitution drawn to suit the wants of 
the present time should limit that power, it becomes necessary 
to review the constitution of the State, to show what the original 
powers of the four towns constituting the colony were, what they 
Avere in the towns admitted after the charter was accepted, how 
they have been gradually curtailed by the general assembly, what 
remain to them now and should be preserved specifically in a new 
constitution. 

In People v. Harding, 53 Mich. 485 (1884), Cooley, C. J., said : 

"In seeing for the real meaning of the constitution we must take into con- 
sideration the times and circumstances under which the State constitution was 
formed, the general spirit of the times and the prevailing sentiments among the 
people. Every constitution has a history of its own which is more or less 
peculiar ; and unless interpreted in the light of this history, is liable to be made 
to express purposes which were never Avithin the minds of the people in agreeing 
to it." 

No constitution is wholly written, even in this, the home of the 
Avritten constitution. For instance, the power of the judiciary to 
declare a laAv unconstitutional and therefore void, when the 
question comes before them in an actual, litigated case, America's 
most valuable contribution to political government is not ex- 
pressly stated in any written constitution. It is, however, as much 
a part of the common laAv of the land, as a part of the unwritten 
constitution, as if it were expressly stated in the Avritten constitu- 
tion. Ehode Island contributed largely to this new check upon 
the power of the legislature by the action taken by its supreme 



33 

court in 1789, in the celebrated case of Trevett d. Weeden, already 
considered. 

Perhaps the fact that Ehode Island was governed under an un- 
written constitution from May 4, 1776, when it declared its inde- 
pendence of England, to November 5, 1842, when the present 
constitution was signed, made it easier for the judiciary to assume 
this power. It certainly made it easier for the general assembly, 
the most powerful branch of the government, to assume new 
powers from time to time thereafter. 

Nor is any constitution wholly unwritten. The Bill of Rights, 
the Act of Settlement concerning the succession to the throne, the 
oaths of office taken by the king and the members of parliament, 
even Magna Charta itself, being in the nature of compacts entered 
into by different parties, are formal sanctions of so much of the 
organic or fundamental law of England as parts of a written con- 
stitution, and theoretically, at least, they can be abrogated only 
by the j3onsent of both parties thereto. The difficulty is that there 
is no means provided in England whereby a violation thereof can 
be declared null and void. Should the king violate these parts of 
a written constitution, he may be impeached ; but should parlia- 
ment violate them, there is no remedy. 

In People v. Hurlbut, 24 Mich. 44 (1871), at p. 107, Cooley J. 
said: 

"If this charter of State government which we call a constitution were all 
there was of constitutional command ; if the usages, the customs, the maxims 
that have sprung from the habits of life, modes of thought, methods of trying 
facts by the neighborhood and mutual responsibility in neighborhood interests ; 
the precepts that have come to us from the revolutions which overturned 
tyrannies ; the sentiments of manly independence and self-control which impelled 
our ancestors to summon the local community to redress local evils, instead of 
relying upon king or legislature at a distance to do so— if a recognition of all 
these were to be stricken from the body of our constitutional law, a lifeless 
skeleton might remain, but the living spirit, that which gives it force and attrac- 
tion, which makes it valuable, and draws to it the affections of the people ; that 
which distinguishes it from the numberless constitutions, so-called, which in 
Europe have been set up and thrown down within the last hundred years, many 
of which, in their expressions, seemed equally fair and to possess equal promise 
with ours, and have only been wanting in the support and vitality which these 
alone can give — this living and breathing spirit which supplies the interpretation 
of the words of the written charter, would be utterly lost and gone." 

The ninth article of Magna Charta provides : 

5 



34: 



" The City of London shall have all the old liberties and customs which it 
hath been used to have. Moreover we will and grant that all other Cities, 
Boroughs, Towns, and the Barons of the Five Ports and all other Ports, shall 
have all their liberties and free customs." 

One of the most cherished of these liberties was the right of 
local self-government : can it be contended that this right is lost 
because not expressly reserved in the written constitution ? Is it 
not a part of the unwritten constitution, one of the common law 
rights brought over from England by our ancestors, and never 
surrendered ? 

It must be remembered also that our form of government is not 
one in which all power is in the legislative, judicial, and executive 
branches thereof unless expressly reserved to the people. On the 
contrary, all power remains in the people that is not expressly 
delegated to one of the three branches named. See, State v. 
Denny, 118 Ind. 449 (1888), by Olds, J., at p. 457. 

A constitution " grants no right to the people, but is the c];eature 
of their power, the instrument of their convenience - ^^ -^ * . A 
written constitution is in every instance a limitation upon the 
powers of government in the hands of agents." 

(Cooley Const. Lims., 5th ed. 47.) 

In Rhode Island the four original towns were really separate 
colonies, and existed before there was any Rhode Island. They 
made it by their union. Providence was settled in 1636 ; Ports- 
mouth, originally Pocasset, in 1638 ; Newport, in 1639 ; and War- 
wick, in 1642-3. These were the original colonies, or towns, of 
this State. They must not be confounded with the present 
towns of the same names, but it must be remembered that many 
of the later towns have been carved out of these four original 
colonies and have the same rights, duties, and powers that the 
original colonies, or towns, had. Each one of these first three had 
its own agreement of association, voluntarily entered into without 
sanction of any kind from crown or parliament, sufficient to en- 
able its inhabitants to maintain its separate political existence, 
and each one acquired the title to its lands by purchase from the 
Indians. The first of these written compacts that has come down 
to us is that of Providence, signed in 1636 by thirteen of the 
founders. It is the most famous, for its setting forth, but only 
negatively and by implication, of Roger Williams' contribution to 
political government, the doctrine of the utter separation of State 
and church that became distinctively Rhode Island doctrine and 



35 

thence spread to every State in the Union, and is now spreading to 
every civilized land. This compact, here again cited, was as fol- 
lows : 

*' We whose names are hereunder, desirous to inhabit in the town of Providence, 
do promise to subject ourselves in active or passive obedience to all such orders 
or agreements as shall be made for public good of the body, in an orderly way, 
by the major assent of the present inhabitants, masters of families, incorporated 
together into a town fellowship, and such others Avhom they shall admit unto 
them, only in civil things." 

(1 R. I. Col. Recs. U.) 

The original may still be seen in the city hall, Providence, 
framed and hung between two plates of glass. 

From the momentous consequences that have resulted from it, 
it is certainly one of the most famous compacts of government in 
existence. 

The first compacts of government, in Portsmouth, in New^port, 
and in the first union, that of the island towns, have already been 
cited. 

The settlers at Warwick did not form any corporation or agree- 
ment of association of any kind, claiming that as English subjects 
they had no right to erect a government without authority 
from the crown or government in England. They continued with- 
out any government and officers until the charter of 1643 was ac- 
cepted and an organization thereunder perfected in 1647. 

Warwick w^as not named in the charter of 1643, because it was 
only settled the year the charter was granted. No acceptance of 
the charter and union under it took place until 1647, and then 
Warwick was admitted on the same footing as the other colonies, 
the record simply stating : 

•"It was agreed that Warwick should have the same privileges as Providence." 
(1 R. I. Col. Recs. 148.) 

It would seem that traces of the influences resulting from the 
union of the island towns (p. 38) were here manifest — that Provi- 
dence w^as admitted to join them " in the modell that hath been 
latelie shewn vnto us by our worthy Friends of the island," thus 
recognizing the fact that the two island tow^ns were already united 
and now Providence was to be allow^ed to come in also. The 
record in full is as follows : 

"6. It was ordered, upon the request of the Commissioners of the Towne of 
Providence, that their second instruction should be granted and established unto 



36 



tbem, Vidg't. Wee do voluntarily assent, and are freely willing to receive and to 
be governed by the Lawes of England, together with the way of the Administra- 
tion of them, soe far as the nature and constitution of this Plantation will admit, 
desiring (soe far as possible may be) to hold a correspondence with the whole 
Colonic in the modell that hath been latelie shewn vnto us by our worthy Friends 
of the island, if the Generall Courte shall compleat and confirm the same, or any 
other modell as the General Courte shall agree vpon according to our Charter.' 
(1 R. I. Col. Eecs. 14T.) 

We have, therefore, the settlement of Providence, Portsmouth, 
and Newport, before any charter whatsoever from England, the 
settlement of Warwick the same year the charter was granted, 
the purchase from the Indians, and the adoption of self-formed 
compacts of government independently of the mother country 
or of any charters granted in England, and the exercise of the 
necessary powers of government. 

The settlement at Portsmouth, in 1638, was made at the upper 
end of the island of Aquidneck ; that at Newport, in 1639, at the 
lower end of the island by a minority of the principal settlers at 
Portsmouth. They carried with them the records made to that 
time and continued them at Newport. 

The separate colonies exercised such judicial powers as were 
necessary for their peace and safety. The first instance we find 
was in 1637, when Joshua Verin was tried in town-meeting, con- 
victed, and disfranchised for not allowing his wife to hear Roger 
Williams preach, as she wanted to. This was done by the major 
assent of the freemen in open town-meeting. 

" It was agreed that Joshua Verin, upon the breach of a covenant for restrain- 
ing of the libertie of conscience, sliall be withheld from the libertie of voting 
till he shall declare the contrary." (1 R. I. Col. Recs. 16). 

In 1637 a new and more elaborate form of government was 
adopted, with provisions for settlement of disputes between the 
tow^nsmen by arbitration. (1 R. I, Col. Recs. 27.) 

Foster (Town Government in Rhode Island, 18) says : 

"There are some minor variations between the practice of Providence and 
that of Portsmouth. For instance, in the former town the administration of 
justice was committed to the whole body of citizens, with at first absolutely no 
discrimination. The next step was to select two 'deputies.' In Portsmouth, on 
the other hand, the citizens began by choosing one of their number ' Judge.'" 

"The 7th of the first month, 1638. 
We that are Freeman Incorporate of this Bodie Politick, do Elect and Con- 
stitute William Coddington Esquire, a Judge amongst us, and so covenant to 



37 



3ield all due honour unto him according- to the lawes of God, and in so far as in 
us lyes to maintaine the honour and privileges of his place which shall hereafter 
be ratitied according unto God, the Lord helping us so to do. 

William Aspinwall, Sec'i/." 
(1 R. I. Col. Recs. 52.) 

Later, in the same year, three "elders were associated with him 
*'in the Execution of Justice and Judgment." (1 R. I. Col. Recs. 
63.) Yet even they were obliged to make a quarterly account of 
their rulings to the town-meeting (in early records designated 
"theBodey.") 

In September, 1638, the Portsmouth town-meeting summoned 
eight inhabitants whom it tried, convicted and sentenced, some for 
drunkenness, some for rioting. (1 R. I. Col. Recs. 60.) 

In another instance the Portsmouth town-meeting condemned 
and divided the property of an absconding debtor (do. 64.) 

April 30, 1639, after the minority had left, to found Newport, a 
new organization was perfected and signed by twenty-nine persons. 
(1 R.. I. Col. Recs. 70.) An act was passed the same day appoint- 
ing seven assistants a court for settling disputes involving less 
than forty shillings. Provision was also made for a quarterly 
court of trials with a jury of twelve men. 

Oct. 1, 1639 : 

'' It is ordered that every Tuesday in the Month of July, the Judge and Elders 
shall assemble together to heare and determine all such causes as shall be 
presented." 

(1 R. I. Col. Recs 90.) 

This would seem to have been in the nature of a court of appeal. 
On the same page may be found the record showing that in the 
quarterly town-meetings, called the quarter courts, " the determina- 
tion of the matters in hand shall be by major vote, the judge hav- 
ing his double vote who also shall have power to putt it to vote 
and to gather up the votes." 

The judge was becoming the chief executive officer. 

Arnold, p. 138, calls attention to the fact that the due administra- 
tion of justice very early occupied the attention of these colonists. 
He says : 

" A formal act of the whole people, passed at this time will set their regard for 
justice, and their care in providing for its administration, in still clearer light : 

' By the Body Politicke in the He of Aqethnec, Inhabiting this present, 25 of 
9: month 1639. 



38 



In the fourteenth yeare of ye Raigne of our Soveraigne Lord King Charles. 
It is Agreed, that as Natural Sublects to our Prince, and subject to his Lawes, 
All matters that concerne the Peace shall bee by those that are Officers of the 
Peace. Transacted : And All actions of the Case or Debt shall bee by such 
Courts as by Order are Here appointed, and by such Judges as are Deputed : 
Heard and Legally Determined. Given at Nieu-port on the Quarter Day Courte 
Day which was adjourned until ye Day. William Dyre, Sec.'" 

This colony, therefore, established a judicial system of its own, 
civil and criminal, the year it was founded, four years before any 
application was made for a charter and eight years before organi- 
zation under the charter granted. Evidently the courts of this 
town did not derive their powers and jurisdiction from the general 
assembly nor from any authority across the sea. 

In 1640 a union was brought about between the two colonies on 
the island of Aquidneck, Portsmouth and Newport. 

"It is ordered, that the Chiefe Magistrate of the Island shall be called 
Governour, and the next Deputie Governor, and the Rest of the Magestrates 
Assistants ; and this to stand for a decree." 

" It is agreed that the Govenor and two Assistants shall be chosen in one Town, 
and the Deputy Govenour and two other Assistants in tlie other Town." (1 
Pt. I. Col. Recs. 100.) 

It will be seen that the towns were not fused into one town, but 
that each kept up its own existence, forming a union for their 
common objects, but leaving to each its own local affairs. This 
has always been the leading characteristic of American union, 
wherever found. The governour and assistants (now senators) 
were invested with the offices of the justices of the peace, this 
being the beginning of a centralized judicial authority. The 
"particular courts," consisting of magistrates and jurors, Avere 
ordered to be held monthly in each town. These courts had juris- 
diction in cases in the respective towns, not involving life and 
limb. There was a right of appeal to the quarter sessions, (1 
E. I. Col. Recs. 113), and two annual parKamentary or generall 
courts were provided, " equally to be kept at the two towns (1 
E. I. Col. Eecs. 106). The laws were revised. The majority of 
the freemen of each town were empowered to select men from 
themselves to lay forth each man's land and to record their doings. 
The land titles have been so recorded in each town ever since. Pro- 
vision was made for each town to have a joint and an equal supply 
of money in the treasury, to be drawn by warrant according to the 



39 

determination of the major vote of the towns, respectively, each 
town to bear its proportion of the joint expense. (1 Col. Recs. 
106.) The assessment and collection of the tax was left to each 
town, and there it has ever remained in Rhode Island. (Gen. Laws 
R. I. cap. 36, sec. 3 and ch. 29.) 

■' It is ordered, that each Towne sball have the Transaction of the affaires that 
shall fall within their own Towne." (1 R. I. Col. Recs. 106.) 

And such has ever been the custom in Rhode Island, although no 
such express statement can be found in the written constitution. 
The time has come now, in view of the encroachments made by 
the general assembly upon this right of our towns to local self- 
government, that it should be put in the constitution in order that 
further encroachments may be stopped. 

In 1641 an explicit statement was made as to the form of gov- 
ernment of this union. 

" It is ordered and unanimously agreed upon that the Government which this 
Bodie Politicke doth attend vnto in this Island, and the Jurisdiction thereof, in 
favour of our Prince, is a DEMOCRACIE, or Popular Government : that is to 
say, It is in the Powre of the Body of Freemen orderly assembled, or the major 
part of tliem, to make or constitute Just Lawes, by which they Avill be regulated, 
and to depute from among themselves such Ministers as shall see them faithfully 
executed between Man and Man." 

"It was further ordered, by the authority of this Present Courte, that none 
bee accounted a Delinquent for Doctrine : Provided it be not directly repug- 
nant to ye Government or Lawes established." (1 R. I. Col. Recs. 112.) 

" It was also ordered that a Manual Scale shall be provided for the State, and 
that the Signett or Engraving thereof, shall be a sheafe of Arrows bound up, 
and in the Liess or Bond, this motto indented: Amor mncet omnia." (1 R. I. 
Col. Recs. 115. ) 

This is cited because here we find used for the first time the 
word " State." 

" The possession of a seal has alwavs been held as one of the insignia of sov- 
ereignty or of exclusive rights. Its adoption by a yet unchartered government 
was significant." 

(1 Arnold, Hist. R. I. 149.) 

Here, in 1641, three years before a charter was applied for and 
six years before the one granted was accepted, we find two inde- 
pendent colonies each reserving its right to local self-government, 
including its own court, uniting to form a State ; adopting a seal 
and establishing a government for the whole body, consisting of a 



40 

legislature, a judiciary, and an executive. The significance of this 
movement has never been adequately recognized. No power, 
either of the two individual colonies nor of the united colony, was 
derived from the crown, parliament, nor from any charter. We 
see, also, that before the grant of the first charter, two of the 
towns, setting up a joint government of their own, exercised these 
rights of sovereignty. Hence they did not receive these rights 
from the colony or State, but, rather, conferred rights upon the 
colony or State that they created by their union. 

One of the most important acts passed was the one, above cited, 
establishing religious liberty, already established in Providence. 

"The people, having recently transferred the judicial power from their own 
control to the courts and juries, they enacted tbis law", protecting liberty of con- 
science, not choosing to trust tbe judiciary with the keeping of that sacred prin- 
ciple for \yhich they had transported themselves, first from England, and then 
from Massachusetts. It was the foundation of the future Statutes and Bill of 
Rights, which distinguished the early laws and character of the State and people 
of Rhode Island from the other English colonies in America." 

(Bull, Memoir of Rhode Island. ) 

The details of the proceedings of this first general assembly of 
the two united colonies may be followed : pages 124 to 162 of 
Arnold's History of Rhode Island. 

The general assembly in 1643-44, changed the name of the 
island from Aquidneck to " The Isle of Rhodes or Rhode Island," 
by which name it has since been known. The dual name of " The 
State of Rhode Island and Providence Plantations " arose from 
the union of the Aquidneck government with that of Providence, 
under the charter of 1663. 

The general officers elected in 1641 continued in office until the 
charter government was organized in 1647. The records of the 
general court of this union cease in 1644, and the town records of 
Newport are lacking. The mutilated pages of the Portsmouth 
town records help to fill the gap and confirm the fact that if no 
general court was convened in this interval, town-meetings were 
held in both towns and their decrees were duly executed. 

The data given' show that Providence, Portsmouth, Newport, 
and Warwick existed as separate colonies until they united. The 
colony of Rhode Island was formed by their union. They were 
the precursors or forefathers of the colony, and the colony was 
their offspring. When Channing in his " United States of America " 
(Macmillan Co., 1897), p. 37, says : " Strong as was the town or- 



41 

ganization, it was not older than the central governments, and it 
cannot be said that the State was founded on the towns," he could 
not have had in mind the settlement of this State. 
Arnold, p. 487, says : 

"Before that period " (the combination under the first charter) ''each town was 
in itself sovereign and enjoyed a full measure of civil and religious freedom," 

The original colonies of Ehode Island have, therefore, enjoyed 
a period of independent sovereignty as separate towns, and two 
of them as a union of towns, although the united colony and the 
State never have. 

"But in the scattered communities which grew up on Rhode Island soil be- 
tween 1636 and 1647, there were lacking not only organic law in common, but even 
documentary agreement in common, and also any delegation of authority from 
outside their limits, — until the patent, whose provisions went into effect in 1647." 

(Foster's Town Government in Rhode Island, 12.) 

As was well said in "The Nation," 39 vol. p. 117 : 

"The diversity of character and interest in the smallest of the colonies is an- 
other illustration of the truth taught by Greek and Italian history, that it is not 
always the largest States that afford the most instructive data for political 
history," 

Milton, that profound political thinker as well as poet, in his 
pamphlet entitled " Keady and Easy Way to Establish a Free 
Commonwealth," said, in language pregnant with meaning : 

"Nothing can be more essential to the freedom of a people than to have the 
administration of justice and all public ornaments in their own election and 
within their own bounds, without long traveling or depending upon remote 
places to obtain their right or any civil accomplishment, so it be not supreme 
but subordinate to the general power and union of the w^hole republic : in w^hich 
happy firmness, as in the particular above mentioned, we shall also far exceed 
the United Provinces, by having, not as they do, to the retarding and distracting 
oftimes of their counsels on urgent occasions, many sovereignties united in one 
commonw^ealth, but many commonwealths under one united and entrusted 
sovereignty." 

(2 Milton Prose "Works, Boston, 1826, 299.) 

It is well known that Milton and Eoger Williams were friends, 
and saw much of each other on Williams' visits to England. We 
have Williams' own testimony that he taught Milton Dutch, and in 
return Milton read him " many more languages." In imagination 

6 



42 

we see these two great souls communing over the establishment 
of these colonies, holding forth " a lively experiment that a flourish- 
ing civil state may stand and be best maintained with full liberty 
in religious concernments," and it may be that it was Williams' 
report to Milton of the success of that experiment in Rhode Island 
that led him to write the above, 

Bryce says, speaking of Rhode Island : 

" This singular little commonwealth whose area is 1,085 square miles (less than 
that of Ayrshire or Antrim) is, of all the American States, that which has fur- 
nished the most abundant analogies to the Greek republics of antiquity, and 
which deserves to have its annals treated of by a philosophic historian." 

(1 Am. Commw. 18.) 

Bancroft, our great historian, vol. 1, p. 380, has well said : 

" The annals of Rhode Island if written in the spirit of philosophy, would ex- 
hibit the forms of society under a peculiar aspect : had the territory of the State 
corresponded to the importance and singularity of the principles of its early ex- 
istence, the world would have been filled wdth wonder at the phenomena of it& 
history. " 

The existence of towns was an admitted underlying fact when 
the parlimentary charter of 1647 and the royal charter of 1663 
were accepted, and there arose an unwritten constitution, a part of 
which was the right of the towns to administer their own local af- 
fairs. The extent and variety of these powers of self-control over 
their own local affairs far exceeded those of any other State, and 
they continue in force at the present day in Rhode Island in 
nearly their full vigor. 

But it will be claimed that such a doctrine is incompatible with 
the doctrine of State sovereignty ; that it goes too far, because if ac- 
cepted it would result in establishing a new sovereign, i. e. town 
sovereignty, in addition to State sovereignty and national sover- 
eignty. 

It is time the false and misleading notion of State sovereignty 
were laid at rest. In truth, a State of the United States is not a 
sovereign. There is but one sovereign in this country, and that is 
the United States (Jameson, 65), or, more properly, the people of 
the United States. 

" There has never been a time in our history when the States were sovereign, "^ 
(Jameson, 51.) 



43 

Madison is reported to have said, in the federal convention in 

1787 : 

" The States never possessed the essential rights of sovereignty. These were 
always vested in congress. Their voting, as States, in congress, is no evidence of 
sovereignty. The State of Maryland voted by counties. Did this make the 
<:tounties sovereign ? The States at present are oul}^ great corporations, having 
the power of making laws, and these are effectual only if they are not contra- 
dictory to the general confederation." 

That no State ever was sovereign was affirmed by the supreme 
conrt of the United States in 1795. (Penhallow v. Doane's Admrs. 
3 Dall. 54, 80.) 

" If it be asked, in whom, during our revolutionary war, was lodged and by 
whom was exercised, this supreme authority ? No one will hesitate for an 
answer. It was lodged in and exercised by congress ; it was there or noAvhere ; 
the States individuallj^ did not, and with safety could not, exercise it. * * * *" 

So Jay, C. J. said in Chisholm Excr. v. State of Georgia, 2 Dall. 
419 (471) : 

" 'We the people of the United States, do ordain and establish this constitu- 
tion.' " Here we see the people acting as sovereigns of the whole country, and 
in the language of sovereignty establishing a constitution by which it was their 
will that the State governments should be bound and to which the State consti- 
tutions should be made to conform. * * The truth is, that the States individu- 
ally, were not known nor recognized as sovereign, by foreign nations, nor are 
they now ; the States collectively, under congress, as the connecting point, or 
head, were acknowledged by foreign powers, as sovereign." (See also Story, 
Com. on Const. § § 210-216.) 

That no State is or ever was sovereign results also from the fact 
that no State is or ever was independent. It was a joint indepen- 
dence by the people of all the States they won, not a several inde- 
pendence of any one State, nor of the people of any one State. 
In the opinion last quoted Jay, C. J., said, also (do. 470) : 

" From the crown of Great Britain the sovereigntj^ of their country passed to 
the people of it. * * * In establishing it (the constitution) the people exercised 
their own rights and their own proper sovereignty ; and conscious of the pleni- 
tude of it, they declared with becoming dignity ! ' We the 'people of the United 
States do ordain and establish this constitution.' " 

So Wilson, J., in Chisholm v. Georgia, 2 Dall. 419 at 454, said, 
speaking also of the people of the United States : 



44 



" They might have announced themselves ' SOVEREIGN ' people of the United 
States : But serenely conscious of ihefact they avoided the ostentatious declaration. 

We must not allow ourselves to be misled by the conventional 
manner in which we speak of State sovereignty. All that we really- 
mean in using the term is the exercise of the highest powers of 
the State within the limits allowed by the constitution and laws 
of the United States, and at most this can only be characterized as a 
limited sovereignty. There can then, therefore, be no objection to 
saying that within certain limits the town in Rhode Island is and 
always has been sovereign. We make no such affirmation of the 
towns in all the States of the Union. Mushroom growths of a day, 
some of the States undoubtedly have complete powers over their 
towns and cities that never existed until they created them. But 
no general rules of laAv can be founded, as to all towns, by cases 
arising in the courts in such States. They have no such historic 
past, no such a course of constitutional development running back 
to the beginning of our country and even before any State or 
colony of Rhode Island existed. It is not too much to say that 
had such a system of town government existed throughout the 
country as has been shown to have existed in this State, and had 
the people known such a system, the doctrine of States' rights 
would never have become established, and there probably would 
have been no secession of States and no civil war. Traces of the 
mischievous doctrine are still to be found, however, where one 
would least expect them. Art. IX Const, of R. I. gives, as the 
form of oath to be taken by all general officers : 

"You * * * do solemnly swear (or affirm) to be true and faithful unto this 
State, and to support the constitution of this State and of the United States. * * " 

Was it mere harmless vanity or some lingering disposition to 
rank the State before the United States that led to this order ? 
Of course it is logically incorrect. The constitution of the United 
States being the supreme law of the land, should always come tirst, 
for in case of conflict between the two, the provisions of the con- 
stitution of the State must give way to those of the constitution 
of the United States. 

Early in the summer of 1643, Roger Williams embarked for 
England from New York in a Dutch ship, being compelled to this 
course by the refusal of Massachusetts to permit him to pass 
through their limits or to take passage in one of their vessels. He 



45 

had been selected by the Rhode Island government and that of 
Providence to procure a charter for both g-overnments. He suc- 
ceeded in his efforts and returned in 1644, bringing with him the 
charter uniting the three colonies of Providence, Portsmouth and 
Newport, as " The Incorporation of Providence Plantations in the 
Narragansett Bay, in New England." 

It Avas not until May, 1647, that the freemen from the four towns 
or colonies. Providence, Portsmouth, Newport, and Warwick met 
in Portsmouth, accepted the charter and formed a government 
thereunder for the united colony that afterwards became the State. 
Fortunately the records are preserved. They should be studied 
and understood by every voter in Rhode Island. (1 R. I. Col. 
Recs. 147 to 207.) 

This first meeting of the corporators to accept the charter was, 
in fact, what the name imports, a general assembly of the whole 
body of freemen. The record states : " It was voted and found 
that the major part of the colony were present at this assembly, 
whereby was full power to transact." It was agreed that a quorum 
of forty might " act as if the whole were present and be of as full 
authority." The general assembly being thus organized : " It was 
agreed that all should set their hands to an engagement to the 
charter." The representative system was then adopted by order- 
ing that " a week before any general court, notice should be given 
to every town by the head officer that they choose a committee 
for the transaction of the affairs there," and they provided for a 
proxy vote in the words " and such as go not may send their votes 
sealed." They then adopted a remarkable code of laws, and 
elected general officers by ballot, to continue in office for one 
year or till new be chosen. 

The growth of Warwick had been hindered by dissensions 
among its founders ; an attempted surrender of jurisdiction, by 
some of the settlers, to Massachusetts ; the foray from Massachu- 
setts of officers and forty soldiers that captured the Gortonists 
after a siege, carried them as prisoners to Boston, where they were 
tried for heresy and sedition and found guilty, as " blasphemous 
enemies of the true religion of our Lord Jesus Christ and His holy 
ordinances, and also of all civil authority among the people of 
God, and particularly in this jurisdiction." 

Gorton and six others were sentenced to be confined in irons 
during the pleasure of the court, to be set to work, and to suffer 
death should they break jail or in any way proclaim heresy or 



46 

reproach to the church or State. Their cattle were appraised and 
sold to defray the cost of seizure aud trial. Massachusetts con- 
tinued her claim of jurisdiction over Warwick until 1665, warning 
against any one's settling there without leave of their general 
court, forbidding the return of the Gortonists after their release 
from jail and placing their houses at the disposal of petitioners for 
the Warwick land. 

Extract from report of the king's commissioners concerning the 
New England colonies, made December, 1665 : 

"The Matachusetts did maintain Piimbam (a pett}' sachim in this Province) 
twenty yeares against this Colony, and his chiefe sacbim, and did by armed sol- 
diers besiege and take prisoners Mr. Gorton, Howden, Wykes, Greene and others 
in this Province, and carry 'd them to Boston, put them in chaines, and took eighty 
head of cattle from them, for all which they could never yet get satisfaction." 

(John Garter Brown, MSS. 1, No. 63.) 

But, in 1647, at the meeting to accept the charter granted to 
Roger Williams, Warwick was admitted to the union, although 
not named in the charter, the record being : " It was agreed that 
Warwick should have the same privileges as Providence " (2 R. I. 
Col. Recs. 148), thus furnishing a precedent for the admission of 
other towns afterwards, and putting them all on the same footing. 

In 1648 : 

"Upon the petition and humble request of the freemen of the Towne of 
Providence, exhibited unto this present session of the General Assembly, 
wherein they desire freedome and libenie to incorporate themselves into a body 
politicke, and we, the said Assembly, having duly weighed and seriously con- 
sidered the premises, and being willing and ready to provide for the ease and 
libertie of the people, have thought fit and by the authoritie aforesaid, and by 
these presents, do give grant and confirme unto the free inhabitants of the towne 
of Providence, a free and absolute charter of civill incorporation and govern- 
ment to be knowne by the Incorporation of Providence Plantation in the Narra- 
gansett Bay in New England, together with full power and authoritie to governe 
and rule themselves, and such others as shall hereafter inhabit within any part 
of the said Plantation, by such a form of civil government as by voluntarie con- 
sent of all, or the greater part of them, shall be found most suitable unto their 
estate and condition : and, to that end, to make and ordaine such civil orders and 
constitutions, to inflict such punishments upon transgressors, and for execution 
thereof, and of the common statute law^es of the colonye agreed unto and the 
penalties, and so many of them as are not annexed already unto the colonye 
courte of trialls, so to place and displace oflScers of justice, as they or the greater 
part of them shall, by one consent, agree unto. Provided, nevertheless, that the 
said lawes, constitutions and punishments, for the civil government of the said 
plantation, be conformable to the lawes of England, so far as the nature and 



4T 



constitution of the place will admit. Yet always reserving to the aforesaid 
Generall Assemblie power and authoritie so to dispose the generall governmente 
of that plantation as it stands in reference to the rest of the plantations as they 
shall conceive, from time to time, most conducing to the general good of the said 
plantations." 

Staples, in his Annals of Providence, p. 74, says : 

" This charter was intended to strengthen the municipal government of Provi- 
dence. To have been more useful, it should have prescribed a form of govern- 
ment to be adopted. There is no reference to this charter in the records of the 
towm, neither a petition for it nor acceptance of it. There is a copy of it in the 
City Clerk's oflBce, engrossed on parchment, w^hich is now- almost illegible. A 
similar charter, bearing date the same day, was granted to Warwick : and, it is 
presumed, Portsmouth and Newport had like charters." 

In 1813, the general assembly passed an act, the title of which 
was significant : 

" An act to enlarge and explain the powers of the Town meetings and Town- 
Council of the Town of Providence." 

This title shows clearly that the general assembly did not at- 
tempt to confer powers upon the town, but sim^Dly to enlarge and 
explain those it already possessed. 

In 1832, upon the request of the citizens and representatives of 
Providence, a charter, drafted by a committee of its owm citizens, 
was granted by the general assembly. Section 1 provided that 
"the inhabitants of the tow^n of Providence shall continue to be 
a body politic and corporate by the name of ' The City of Provi- 
dence.' " 

It will be seen from this that Providence, until very lately the 
only city in the State, w^as not created nor incorjyoratecl by the 
general assembly. It simply continued it as a body politic and 
corporate under another name. " The Town of Providence " be- 
came " The City of Providence." It parted with no old rights to 
the general assembly, it acquired no new ones from it. The gen- 
eral assembly, at the request of the town of Providence, moulded 
and directed its name and form so that it became the city of 
Providence. 

The controversy between Ehode Island and Massachusetts over 
the next town admitted to Rhode Island (Westerly, in 1669) is 
illustrative of the fact already shown — that the early towns of 
Ehode Island were first settled and afterw'ards admitted to the 
union. Massachusetts claimed the whole Pequot country by right 



48 

of conquest, and erected the tract on both sides of Pawcatuck 
river, which is now the westerly boundary of Rhode Island, into 
the township of Sonthertown, and attached it to the county of 
Suffolk. In 1660, William Vaughn and others, of Newport, bought 
part of this land, called Misquamicock, afterwards Westerly, of 
the Indians, and thirty-six settlers from Rhode Island took pos- 
session. Upon complaint to the Massachusetts general court 
from settlers on the east side of Pawcatuck river, a warrant was 
issued to the constable of Southertown to arrest the trespassers. 
They were taken to Boston and committed for want of bail. They 
were tried, sentenced to pay a fine of forty pounds, to be im- 
prisoned until it was paid, and to give sureties for one hundred 
pounds to keep the peace. Rhode Island denied the right of 
Massachusetts to the jurisdiction asserted, and a controversy arose 
between the two colonies. Connecticut joined, ordering the in- 
habitants of Mystic and Pawcatuck not to exercise authority 
under commissions from any other colony. In 1663 a house was 
torn down by residents of Southertown because it was claimed to 
be within the asserted jurisdiction of Rhode Island. William 
Marble, a deputy from the marshal of Suffolk, bearing a letter to 
the Westerly settlers on this subject, was arrested, sent to New- 
port, and confined in prison eleven months. In 1665 a royal 
commission, appointed to settle these and other controversies, 
decided that no lands conquered from the natives should be dis- 
posed of by any colony unless the conquest was just and the soil 
was included in the chartei of the colony, and that no colony 
should attempt to exercise jurisdiction beyond its chartered limits. 
This put an end to the asserted right of jurisdiction of Massachu- 
setts. (1 Arnold, Hist. R. I. 276, 282, 316.) 
May, 1669, the general assembly voted : 

" This Court taking notice of the returne by the committee, to wit : Mr. John 
Easton, Mr, Benjamin Smith, James Greene, Edward Smith, Caleb Carr and 
William Weeden, in reference to the petition or desire of the people inhabiting 
at Musquamacott and Pawcatuck in the King's Province, to be made a towne- 
shipp, it being and lying within this jurisdiction, as by his Majestyes Letters 
Pattents it may appear, and considering the Power by his Majesty given to this 
Assembly to order and settle townes, cityes and corporations, within this said 
Jurisdiction, as shall seem meet * * * Be it therefore enacted by this As- 
sembly, and by the authority thereof that * * * shall be knowne and called 
by the name of Westerly ; and shall be reputed and deemed the fifth town of 
this Collony : and shall have, vse and enjoy all such privilidges, and exercise all 
such methods and formes for the well ordering their towne affaires as any other 



49 

towne in this Collouy may now vse and exercise : and they shall have liberty to 
elect and send two Deputyes to sitt and act in the Genneral Assemblys of this 
Collony from time to time * * * ." (2 R.I. Col. Recs. 250-251.) 

The settlement of Block Island, its history and incorporation as 
NcAv Shoreham, the sixth town, still further illustrates this. 

At first under the jurisdiction of Massachusetts, it was granted 
to Gov. Endicott and three others, in 1658, as a reward for their 
public services. They sold it in 1661 to Simon Ray and eight 
associates, who began a settlement there in 1662, liquidated the 
Indian title subject to a reservation in favor of the natives, and 
set apart one-sixteenth of the land for the support of a minister 
forever. One Dr. Alcock also claimed title to the island, by pur- 
chase of "some in Boston (who took upon them power never 
granted them to sell it)." (2 R. I. Col. Recs., 128.) Under the 
charter of 1663 Block Island became a part of Rhode Island. In 
1664 it was 

"Resolved by this Assembly : That the Governor and Deputy Governor be 
desired to send to Block Island to declare vnto our frends the inhabitants thereof, 
that they are vnder our care, and that they admitt not of any other to beare rule 
over them but the power of this Collony." (2 R. I. Col. Recs. 32.) 

Petitions were presented to the general assembly in 1664 by the 
inhabitants of the island, for admission as freemen of the colony. 
They were referred to a committee which reported a letter that 
was sent, and may be found in 2 R. I. Col. Recs. 53, setting forth 
in detail how the inhabitants are to be admitted and sworn in as 
freemen of the colony. November 6, 1672, the island was incor- 
porated as New Shoreham, " as signs of our unity and likeness to 
many parts of our native country." The act (2 R. I. Col. Recs. 55, 
466-470) expressly recognizes their existing form of government 
and continues some of its features. This is still the law. 

Although under the jurisdiction of Rhode Island since 1663, Block 
Island continued to govern itself in all matters until 1672, and the 
act incorporating it well deserves study from the light it throws 
upon the way in which this little isolated community had worked 
out its own system of government, retained part of it when it was 
incorporated, and has continued to exercise it ever since, even 
gaining admission of its established right to exemption from mili- 
tary duty ("until otherwise prescribed by law") in Art. XIY, Sec. 
4, of the constitution of 1842, still in force. 

By the act of incorporation the inhabitants were required 



50 



" To meete four times in the j^eare for their said towne affaires, for the making 
of such order or bye lawes as may be needfull for their better management of 
their affaires among themselves according to their constitution, not opugninge 
the laws of his Majestie's realme of England, his patent, nor the la^YS of this 
colony, agreeable thereto." 

On account of the distance by sea, so that often the inhabitants 
conld not reach the mainland " because of danger and hinderings 
divers ways," the wardens were empowered, following their custom 
already established before their incorporation, " to hold pleas of 
actions of account, debt, detinue, trespass and of the case to the 
value of five pounds sterling of New England money," ^ "^ " and to 
proceed in the said actions according to the lawes of his Majestie's 
realme of England (so farr as the constitution of the place will 
admitt) and accordinge to due forme of lawe in this Collony agree- 
able thereto." 

"The remoteness of the island rendered it almost independent of the colony, 
and produced a different system from that which prevailed in the other towns." 
(1 Arnold, Hist. R. I. 304.) 

The wardens of New Shoreham still join persons in marriage in 
the town, a privilege not enjoyed in any other town in the State. 

It is evident this town was not the creature of the State, but 
came into it with established powers of its own that it still con- 
tinues to enjoy. (Gen. Law^s R. I. cap. 191, sec. 8.) 

King's Towne, afterwards Kingston, now North and South 
Kingstown, the seventh town, was settled in 1641. In October, 
1674, it w^as 

"Voted by the King's authority in this Assembly, it is approved the Gen- 
eral Councill's acts in obstructiuge Connecticutt Colony from useinge jurisdiction 
in the Narragansett country and the Councill's establishing a towneshipp there, 
and the calling it Kingstown, with liberty as hath been granted to New Shore- 
ham ; * * * * and that futurely it shall be lawfuU to summons as many 
of our inhabitants as they see cause to attend at Xarragansett to oppose Con- 
necticut from useinge jurisdiction there: but not in any hostile manner, or to 
kill or hurt any person." 

(2 R. I. Col. Rees. 525.) 

In 1679 it was 

"Voted, the Recorder shall draw forth the copy of the act of the Generall 
Assembly in October, 1674, concerninge the confirming of the act of the Generall 
Council, in establishing a towneshipp in Narragansett, and calling it King's 
Towne, which shall be sent to the inhabitants there, under the scale of the 
Collony." 

(3 R. I. Col. Recs. 55.) 



51 



East Greenwich, the eighth town, was incorporated in 1677. 
This would seem to be the first town that was incorporated first 
and settled afterwards. 

Arnold, p. 128, says : 

" A tract of five thousand acres was laid out in two parts, one of five hundred 
acres on the bay, for house lots, and the remainder in farms of ninety acres each, 
and distributed among fifty men, who were now incorporated as the town of 
East Greenwich," 

(See the act, 2 E. I. Col. Recs. 586.) 

At 588 it declares : 

"And to the end that the said persons and their successors, the proprietors of 
the said land from time to time, may be in the better capacity to manage their 
public affairs, this Assembly doe enact and declare that the said plantation shall 
be a towne, by the name and title of East Greenwich, in his Majesty's Collony of 
Rhode Island and Providence Plantations, Avith all rights, libertys and privi- 
ledges whatsoever unto a towne appertaininge." 

Jamestown, the island the Indian name of which was Quonono- 
quitt (now Conanicut), was incorporated as the ninth town, in 1678, 
although it was settled before then. The record is very brief : 

'"Voted, That the petition of Mr. Caleb Carr and Mr. Francis Brinley,on the 
behalfe of themselves and the proprietors for Quononoqutt Island to be made a 
towneship, shall be first adjetated and debated. 

Voted, That the said petition is granted ; and that the said Quononoqutt shall 
be a towneship, with the like priviledges and libertyes granted to New Shore- 
ham." 

Some of the peculiar features of its town government are still 
preserved, protected by law. It still elects its wardens, whose 
" warden's courts " have the same jurisdiction as the district courts 
in other parts of the State. (Gen. L. R. I. cap. 228, § 24.) 

No further change as to towns took place until 1730, when " an 
act for erecting and incorporating the outlands of the town of 
Providence into three towns " was passed. (1 R. I. Col. Recs. 442.) 
Smithfield, Scituate, and Glocester were thus incorporated ; and, in 
language almost identical with that cited above in the acts incor- 
porating the previous towns, it was enacted " and that the inhab- 
itants thereof from time to time (in the case of Glocester ' for the 
time being ') shall have and enjoy the like benefits and privileges 
(or liberty) with other towns in this colony, according to our 
charter (or agreeably to our charter — or by our charter do)." 

These citations are enough to sustain our contention that as 



52 

new towns were incorporated tliey were granted the same benefits 
privileges, and liberties that were enjoyed by the four original 
towns or colonies that existed before there was any united colony, 
and that they came into that united colony with certain well-estab- 
lished rights, one of which was the right to manage their own 
local affairs. 

The following letter, written in 1832 by John Howland, is sig- 
nificant. A soldier in the revolutionary war, he settled in Provi- 
dence after it was over, followed the humble profession of a 
barber, and lived to great old age. A self-educated man, he left 
his mark on the city, being the founder of the Providence Insti- 
tution for Savings, the principal savings bank in Kliode Island, 
and its first president. In this letter to Eev. James Knowles, he 
said: 

"You ask rae for a copy of the act incorporating the town. I have not yet 
searched for it, but intend to. If I had lived in those days, I should have op- 
posed receiving such an act from the general assembly. The four original towns 
made the general assembly, and they could confer no power which was not 
already possessed by the old towns. New towns might be incorporated, but it 
was absurd for the old ones to receive authority from their own agents or depu- 
ties. We saw and felt the disadvantages of this pretended act of incorporation 
two or three years ago when the school bill was discussed and passed. The 
assembly then claimed the power to restrict the towns from levying taxes for the 
support of schools, as they said no such power was granted them in their acts 
of incorporation and that all the power of the towns was derived from special 
acts of the general assembly. But the truth is the old towns had, from their 
first settlement the power to assess taxes for this as well as for other purposes, 
and they did not relinquish it when they received their corporate powers. The 
acts of incorporation could not grant or restrict, but only confirm the powers 
already existing, which were not contrary to the laws of England." 

(Stone, Life and Rec. John Howland, 256.) 

This man understood thoroughly, not from books, but from his 
practical knowledge derived from a long life under the institutions 
he wrote about, the Rhode Island ideas about local self-govern- 
ment. He represented what has always been the common under- 
standing of the people of the State, and the entire past legislation 
of the State has voiced that understanding. 

We are in a better position now to call more particular attention 
to the analogy between the system of towns forming Rhode Is- 
land and the system of States forming the United States. This 
analogy is most remarkable. As the original thirteen States con- 
stituted the Union of the United States, so did the four original 



58 



colonies or towns constitute the united colony, subsequently the 
State. As new States came into the Union, so new towns became 
a part of Rhode Island. Out of the union of the towns arose the 
the colony, subsequently the State, that afterwards admitted or 
created new towns. Out of the union of the States arose the 
United States, that, in its turn, created or admitted new States 
into the Union. Each town of this State and each State of the 
United States is supreme in its own sphere, each regulating and 
administering its own internal affairs, thus constituting a hie- 
rarchy consisting of: 1, the town; 2, the State; 3, the United 
States. When a new State came into the Union, it reserved its 
local self-government, as the thirteen original States had reserved 
it before them. So, when new towns were formed in Rhode 
Island, they became a part of the State upon same footing with the 
four original towns, that is to say, they retained the right to local 
self-government by imx)lication, since no distinction was made be- 
tween the power of the original towns and of the new towns. So 
no distinction is made, once inside the Union, between an original 
State and a new State. 

"The similarity between the Kew England confederacy of 1643 and the Na- 
tional Confederation of 1783 has been often remarked ; but there is yet a stronger 
resemblance in the relative position of the four towns of Rhode Island in 1647 
and the States of the Federal Union under the constitution of 1787." 

(1 Arnold 211 note.) 

The admission of new towns to the union, with like powers as 
if they were original towns, still further marks this analogy : 

"This colony has, in fact, been a sort of microcosm, in which there have been 
developed, on a smaller scale, the more important issues which have operated in 
a large way on the stage of national government." 

(Foster, Town Government in Rhode Island, 35.) 

In an address by George Bancroft, the historian, before the 
New York Historical Society, in 1866, he said : " more ideas which 
have since become national have emanated from the little colony 
of Rhode Island than from any other." 

This power of the towns of this State to local self-government 
can no more be taken from the new towns than from the old 
towns ; for all, once inside the united colony, or State, are on the 
same footing, just as all the States in the Union, new and old, are 
on the same footing. The existence of towns with powers of self- 
government was an admitted underlying fact when the parliament- 



54 

ary charter of 1643 and the royal charter of 1663 were granted, 
and there has arisen an unwritten constitution, through the con- 
tinuous and uninterrupted usage of two hundred and sixty years, 
a part of which is the right of the towns in Rhode Island to ad- 
minister their own local affairs. The extent and variety of these 
powers of self-control by the towns of this State far exceeded 
those of the towns of any other State, and, unrecognized by jurists, 
they continue in force at the present day, in something like their 
pristine vigor. Two reasons have contributed largely to long 
continued ignorance of these powers, not only in Rhode Island, 
but similarly in other States throughout New England, New York, 
Pennsylvania, and other of the original States. In the first place, 
the success of the revolution exalted the power of the States, forget- 
ful of the fact that the towns contributed as much as the States to 
our success. But for Samuel Adams and the organized exertion by 
him and others of the powers of the towns throughout New England, 
the revolution would have lost one of its most powerful supports. 
In the next place, the absence oj printed records of the doings of the 
founders of our towns and colonies until a late day, has prevented 
the growth of a body of lawyers trained in the constitutional law 
of their respective States. Only a few mousing antiquaries have 
known anything about these matters until within the last genera- 
tion. Consequently there has not been any educated public 
opinion, even among those competent to pass upon such subjects, 
until lately, that could keep alive a knowledge of these principles 
and prevent encroachment upon them. Law after law by legisla- 
ture after legislature in State after State has little by little re- 
stricted the town power in a way that cannot be defended. The 
decisions in such a State as Massachusetts show an ignorance of 
these principles of their local constitutional law only to be ac- 
counted for upon the supposition that they did not know the 
history of their own State. 

(See, e. g., the case of Commonwealth v. Plaisted 148 Mass. 375.) 
In that State the rights of the towns to local self-government 
not having been i^rotected by the judiciary, we find more than 750 
special laws passed by the general court to regulate the local af- 
fairs of the city of Boston alone. 

In consequence of the decisions of her courts, especially that in 
Commonwealth v. Plaisted, 148 Mass. 375 (1889), the glory of Massa- 
chusetts as a union of self-governing towns is gone, never to re- 
turn, except through a constitutional amendment or a reversal of 



55 



that case upon re-argnment and submission of authorities. For an 
examination of the briefs in the social law library in Boston con- 
firms the suspicion, which the opinion aroused, that the argument 
herein presented was not presented to the court, nor were any 
authorities sustaining these views before the court. 

The opinion cannot be considered, therefore, as being one of 
weight or in any way worthy of the reputation of this able court. 

Formerly the bar and bench did not know the political history 
and the constitutional development of the different States, because 
the records from which alone such knowledge could be acquired 
were not in print. Herein lies the advantage of printing in the 
most complete and ample form all the records of the founders of 
all our towns as well as States, a duty that has not even yet been 
duly performed as it should be. But the printing of our colonial 
records, even in their present imperfect shape, has made it possi- 
ble for the lawyers of the present day to know much more about 
the development of the constitutional law in Bhode Island than the 
generation before us could possibly know. It behooves us, there- 
fore, to help to form a better enlightened public oioinion on these 
matters. The object of this pamphlet will be achieved if anything 
herein contributes to that end and will help to bring about a better 
government for this State. 

Although the general assembly has undoubted power to pass 
general laws affecting all towns and cities alike, or, upon the 
request of any one town or city, to give it additional power; 
although it may mould and direct by general laws all towns and 
cities, or even any one of them, upon request or necessity — it is 
submitted that in Bhode Island towns are the recognized units of 
its political system ; cities are but towns in which the increased 
population has rendered impracticable the control and regulation 
of local affairs by town -meetings and town councils, and the in- 
habitants have therefore petitioned the general assembly to place 
such control in a city council; a city in Ehode Island is but a 
town that has asked for and submitted to a city organization : it is 
a political unit in which the control theretofore exercised by town- 
meetings has now, at their own request, become vested in a city 
council, with a mayor as the executive head. 

If it has become desirable to change a town into a city, to change 
town boundaries or to divide a town to make two towns, the power 
thus to mould and direct has been exercised by the general as- 
sembly, but only upon the request of the parties in interest, and 



56 

subject to their assent. Such as decision as that in Philadelphia v. 
Fox, 64 Penn. St. 169 (1870), Avould be impossible in Khode Island. 
It was there held that the city of Philadelphia is merely an agency 
instituted by the sovereign for the purpose of carrying out in de- 
tail the objects of government, subject to the control of the legis- 
lature, who may even destroy its very existence with the mere 
breath of arbitrary discretion. " Sic voleo, s'lc jiiheo, that is all the 
sovereign authority need say," says so eminent a judge as Shars- 
wood, at p. 180. 

It is no wonder that in States where such decisions as these are 
made, all sense of civic pride is gone, all power of self-control being 
taken away, and consequently the government has passed into the 
hands of professional politicians, many of whom, if they received 
their deserts, should be behind the bars of the State prison. 

A like fate awaits us in Rhode Island if we tamely submit to 
the continued encroachments of the general assembly, under the 
leadership of the dominant i3olitical party and the machine be- 
hind it. 

But, it is urged, Boston is a democratic city, and this decision 
was necessary to keep that city under the control of the republican 
general court! The same argument was heard in the State house 
in Providence last spring. It was urged that the bill to authorize 
the governor to ajjpoint a board of police and license commis- 
sioners for the city of Providence must be carried through, be- 
cause Providence is a democratic city, and this measure would 
keep it under the control of the republican general assembly! 
Considerations of this nature may appeal to machine politicians, 
but they certainly will not to any honest believer in our form of 
government who places the welfare of the State above party and 
party success. 

In England the civil divisions into counties, hundreds tithings 
and towns date as far back as Alfred the Great. They were sub- 
stantially in existence before the Norman conquest. The Anglo- 
Saxon race carried with it everywhere their Teutonic institutions, 
their system of local self-government. "It is here they have 
acquired the habits of subordination and obedience to the laws, of 
patient endurance, resolute purpose, and the knowledge of civil 
government which distinguish them from every other government." 
(State V. Denny, 118 Ind. 118 at 458.) The townsfolk themselves 
assessed their taxes, levied them in their own way and paid them 
through their own officers. They claimed broad rights of justice, 



57 

whether by ancient custom or royal grant ; criminals were brought 
before the mayor's court, and the town prison, with irons and its 
cage, testified to an authority which ended only with death. 
(Green, Town Life in the Fifteenth Century, 2.) 

But in England, as well as in the United States, there was a fall- 
ing off from their former high estate. There, as here, there was 
no printed record of their ancient procedure and authority, no 
trained body of lawyers versed in the constitutional laAv of town 
rights. " Four hundred years later the very remembrance of their 
free and vigorous life was utterly blotted out. When commis- 
sioners were sent in 1835 to enquire into the position of the English 
boroughs, there was not one community where the ancient tra- 
ditions still lived." (do. p. 5.) 

The supremacy of the town in Ehode Island is also evidenced 
by the insignificant role the county has always filled in this State. 

The first division into counties was in 1703. 

"Be it further enacted by the authority aforesaid : That there shall be two 
inferior Courts of Common Pleas to be holden on the main land for her majesty, 
early in the county known by the name of Providence Plantations ; and that it 
shall be held at Providence first as the shire town ; and next at the town of 
Warwick." 

(3R. I. Col. Recs. 477-1703.) 

" Be it further enacted by the authority aforesaid : That Rhode Island, with 
the rest of the islands within the said Collony, shall be a county by the name of 
Rhode Island County ; and that Newport be the shire town." 

(3 R. I. Col. Recs. 478-1703.) 

It will be noticed that here there was no incorporation of the 
counties — they were merely geographical divisions of the colony. 
Washington county, originally called the Narragansett country, 
was created next, in 1729, as King's county (4 R. I. Col. Eecs. 427). 
The act is entitled " An act for the dividing the colony of Rhode 
Island and Providence Plantations into three counties -^ ^ * * " 
(Newport, Providence, and King's county), and was passed because 
" the more remote inhabitants are put to great trouble and difiiculty 
in prosecuting their affairs in the common course of justice, as the 
courts are now established," and this is the only end achieved 
even now by the division of the State into counties. The name of 
this county was changed to Washington county in 1781. 

The next county created was Bristol county, in 1747 (5 R. I. 
Col. Recs. 208), and the fifth and last county was Kent county, in 
1750 (5 R. I. Col. Recs, 302). 



58 

But although we speak of these counties as incorporated (it is 
noteworthy that not all of these acts do so), they are not corpora- 
tions in the sense that towns are corporations — for in Rhode 
Island everything- is done by the towns and nothing by the 
counties. 

We have no county commissioners, no county records, no county 
taxes, no county roads, no county probate courts. All these 
things are and ever have been managed by the towns. The only 
county officers are the clerk of the supreme court and court of 
common xDleas, who has the custody of the papers of these courts 
when they meet in the different counties ; the sheriff of the county, 
whose writ, however, runs throughout the State ; and the keeper of 
the county jail, who, in other than Providence county, is the 
sheriff of the county. A county can neither sue nor be sued in 
Rhode Island, as a town can, and is not a corporation. 

The power of the town over its own probate matters is another 
mark of the supremacy of the town in Rhode Island and of the 
continued retention of an original power. Until the acceptance of 
the charter, in 1647, each town had jurisdiction over probate mat- 
ters arising in the town, as it had over all other judicial matters. 

In " that remarkable piece of colonial legislation, the code of 
1647 " (Gleanings from the Judicial History of Rhode Island, by 
Judge Durfee, 6), passed at the first meeting of the general as- 
sembly, we find (1 R. I. Col. Recs. 188) a statute concerning the 
probate of wills, conferring this power upon " the head officer of 
the Towne " whom we should now call the president of the town 
council, and who was the chief executive of each town. 

In 1675 it was 

"Voted, whereas by law of this collony (in the letters thereof in the said law) 
bearing date in the yeare 1647, said saith, the probate of wills, was to be before 
the head officer, which said name (in the said law) by the present constitutions is 
extinct, and by reason of difference of opinion probation of wills is deferred ; 
and for that the thinge is as weighty as to make a will for the dead, dyinge with- 
out a will, and the said supposed head officer may be in his own case ; therefore 
be it enacted, that the power of probation of wills shall be in the Towne Coun- 
cills or major part of each, to which it doth belong." 

(2 K I. Col. Recs. 525.) 

This law plainly recognizes and restores a former custom, and 
as thus established it has continued to be the law even until now, 
special probate courts being instituted by the general assembly 
only as increase of po^^ulation requires. 



59 

The life of tlie towns of Rhode Island has been continuous and 
uninterrupted since their respective settlements, that of Provi- 
dence being in 1636 ; of Portsmouth, 1637 ; of Newport, 1638 ; and 
of Warwick, 1642-3. This cannot be said of the colony and State. 
In 1651 William Coddington, an uneasy and ambitious spirit, the 
first judge in Portsmouth, 1638 to 1639, the first judge in Newport, 
1639 to 1640, and the first governor under the union of these two 
colonies, from 1640 to 1647, went to England, and by means now 
impossible to discover, obtained from the council of State a com- 
mission to govern the islands of Rhode Island and Conanicut 
during his life, with a council of six men to be named by the 
people and approved by himself. It made him the autocrat of 
the fairest and wealthiest portion of the colony, and put an end 
to the united colony for the time being. The alarm was great, 
and John Clarke was appointed the agent of the island towns, 
Portsmouth and Newport, to procure a repeal of Coddington's 
commission, and Roger Williams was appointed the agent of the 
main land towns. Providence and Warwick, to obtain a confirma- 
tion of the charter of 1643. 

" In effect tbe same result was aimed at and secured — a return to their former 
mode of government by a reunion under the charter," 
(Arnold, 239.) 

They succeeded in their mission, and upon receipt of intelli- 
gence of the repeal of Coddington's power a town-meeting was 
held in Providence February 20, 1652-3, at which, in accordance 
with a request from the town of Warwick, a meeting of commis- 
sioners of the two towns was agreed upon. It was held at Paw- 
tuxet the following week. They drafted a reply to a letter from 
the island towns of Portsmouth and Newport relating to a re- 
union of the colony, and appointed two members from each town 
to carry it and to consult with those of the island concerning the 
peace and welfare of the State (1 R. I. Col. Rec. 239). But their 
labor was fruitless. The main land toAvns contended they Avere 
the Providence Plantations, their charter never having been va- 
cated and their government having continued uninterrupted by 
the defection of the island towns, and therefore the general assem- 
bly should meet with them. The island towns claimed the assem- 
bly should meet there because they formed the greater part of the 
colony and hence had a larger interest in the matter. 

The result was that two distinct general assemblies convened at 



60 

the same time in 1653 and elected different general officers for the 
colony. So great was the feeling that the assembly at Providence 
disfranchised those who owned the validity of commissions to 
fight against the Dutch, issued by the other assembly. The dis- 
sension continued, and Sir Henry Yane wrote to the people of 
Ehode Island a most kind and imploring letter, urging them to 
reconcile their feuds, for the honor of God and the good of their 
fellow men. " Are there no wise men among you ? No public 
self-denying spirits," he asks, "^ " " "who can find someway 
or means of union * ^ ^ before you become a prey to ene- 
mies ? " The interest that Yane took in this matter was due to his 
intimacy with Williams, and because mainly through his friendly 
intervention the parliamentary charter was obtained. (Diman, 
Oration and Essays, 133). 

At length a reunion was effected in 1654 by articles of agree- 
ment signed by a court or general assembly of six commissioners 
from each of the four towns, assembled at Warwick. 

The administration or usurpation of Andros lasted two years 
and four months, from December 1686, to April 1689, during 
which time all the charter governments of New England were 
suspended. 

Arnold, 1st vol. 487, says : 

"The American system of tOAVD governments wliicli necessity had compelk-d 
Rhode Island to initiate, fifty years before, now became the means of preserving 
the liberty of the individual citizen when that of the state or colony was 
crushed. To provide for this was the last act of the expiring legislature. For 
this purpose it was declared ' lawful for the freemen of each town in this colony 
to meet together and appoint five, or more or fewer, days in the year for their 
assembling together, as the freemen of each town shall conclude to be convenient, 
for the managing the affairs of their respective towns ' and that yearly, upon 
one of those days, town officers should be chosen as heretofore, taxes levied, and 
other business transacted at such meetings, as the majority should determine." 

(3 R. I. Col. Recs. 191.) 

It was the towns, with their continuous existence, that kept alive 
the vital flame and rescued it from the embers of the dying 
colony, after three j^ears of suspension of colonial corporate 
existence. 

Discussion upon the referendum and the initiative is in vogue, 
but not even Oberholzer in his work on the subject calls attention 
to the fact that it was in Rhode Island in 1647, when the four 
already existing colonies organized under the parliamentary char- 



61 

ter of 1644, the referendum was first introduced. The matter is of 
such importance as to require, for full understanding, the citation 
of the legislation adopted. 

Among the " Acts and Orders Made and agreed upon at the 
Generall Court of Election held at' Portsmouth in Ehode Island 
the 19, 20, 21 of May, Anno. 1647, for the Colonie and Province of 
Providence " (1 E. I. Col. Eecs. 147), when the first charter was 
accepted, we find the following : 

" 2. It was Voted and found, that the major parte of the Colonie was present 
at this Assemblie, whereby there was full power to transact." 

That is to say, this, the first meeting of the incorporated held 
formally to adopt the charter granted Avas, in fact, what the name 
imports, a general assembly of the whole people, and it then 
adopted the representative system. (It is to be remembered that 
the freemen from the towns continued thus to meet in Newport, 
either in person or by proxy, every May and October, and decided 
who should represent them in the general assembly for the next 
six months, until 1760.) (6 E. I. Col. Eecs. 256.) 

"7. It was unanimously agreed. Thai we do all owne and submit to the Lawes, 
as the}^ are contracted in the Bulke with the Administration of Justice according 
thereto, which are to stand in force till the next Generall Courte of Election, and 
every Towue to have a Coppie of them, and then to present what shall appeare 
therein not to be suitable to the Constitution of the place, and then to amend it." 

That is, whatever law of the general assembly was found not 
to conform to the constitution or compact of agreement of each 
town was to be amended. The freemen of the towns were jealous 
of their town rights, and took this means to preserve them. 

" 11. It is ordered, that all cases presented, conceruiog General Matters for 
the Colony, shall be first stated in the Townes, Vigd't, That is when a case is 
propounded. The Towne where it is propounded shall agitate and fully discuss 
the matter in their Towne Meetings and conclude by Vote : and then shall the 
Recorder of the Towne. or Towne Gierke, send a coppy of the agreement to 
every of the other three Townes, who shall agitate The case likewise in each 
Towne and vote it and collect the votes Then shall they commend it to the 
Committee for the General Courte (then a meeting called), who being assembled 
and finding the Major parte of the Colonic concurring in the case, it shall stand 
for a Law till the next Generall Assembly of all the people, then and there to be 
considered whether any longer to stand, yea or no : Further it is agreed, that 
six men of each Towne shall be the number of the Committee premised, and to be 
freely chosen. And further it is agreed, that when the General Courte thus 
assembled shall determine the cases before hand thus presented. It shall also be 



62 



lawful for the said Geneial Court, and hereb}'^ are they authorized, that if vnto 
them or any of them some case or cases shall be presented that may be deemed 
necessary for the public weale and good of ihe whole, they shall fully debate, 
discuss and determine ye matter among themselves : and then shall each Com- 
mittee returning to their Towne declare what the}^ have done in the case or cases 
premised. The Townes then debating and concluding, the votes shall be collected 
and sealed up, and then by the Towne Clarke of each Towne shall be sent with 
speed to the General Recorder, who, in the presence of the President shall open 
the votes : and if the major vote determine the case, it shall stand as a Law 
till the next General Assemblie then or there to be confirmed or nullified." 
(1 R. I. .Col. Recs. 148.) 

It is believed that in this statute is found the earliest known 
instance of the initiative and referendum, now so much admired 
in the Swiss constitution. 

Arnold (1 Hist. E. I. 203) says : 

"The mode of passing general laws was then prescribed and deserves atten- 
tion for the care with which it provides for obtaining a free expression of the 
opinions of the whole people. All laws were to be first discussed in the towns. 
The town first proposing it was to agitate the question in town meeting and con- 
clude by vote. The town clerk was to send a copy of what w-as agreed on to the 
other three towns, who were likewise to discuss it and take a vote in town meet- 
ing. They then handed it over to a committee of six men from each town, freely 
chosen, which committee constituted the General Court, who were to assemble at 
a call for the purpose, and if they found a majority of the colony concurred in the 
case, it ^vas to stand as a law, ' till the next General Assembly of all the people ' Avho 
were finally to decide whether it should continue as law or not. Thus the laws 
emanated directly from the people. The General Court had no power of revision 
over cases already presented, but simply the duty of promulgating the laws with 
wiiich the towns had entrusted them. The right to originate legislation was, 
however, vested in them, to be carried out in this way. When the court had 
disposed of the matters for which it was called, should any case be presented 
upon which the public good seemed to require their action, they were to debate 
and decide upon it. Then each committee, on returning to their town, was to 
report the decision, which was to be debated and voted upon in each town ; the 
votes to be sealed and sent by each town clerk to the General Recorder, who, in 
presence of the President, was to count the votes. If a majority w^ere found to 
have adopted the law, it was to stand as such till the next General Assembly 
should confirm or repeal it. The jealousy with which the people maintained 
their rights, and the checks thus put upon themselves in the exercise of the law- 
making power, as displayed in this preliminary act, present most forcibly the 
union of the two elements of liberty and law in the Rhode Island mind. " 

The law stood thus until 1650, when the following act was 
passed : 

" Whereas, by the powre of the last General Assemblie for election, held at 
Newport in May last, where, by authority, an act was then established, that the 



63 

Representative Committee should have the full powre of ye Generall Assembly ; 
and ^vho, when being lawfully mett, and orderly managed, did toward the latter 
end of that sessions, enact and give order for a new election of another representa- 
tive, to assemble and sit with the like authoritie in October following : the which 
being accordingly now assembled and orderly managed, do by the authority and 
powre of the said ordinance, in the name and powre of the free people of this 
State, enact these lawes following. 

It is ordered that from henceforth the representative committee being assem- 
bled and having enacted law or lawes, the said lawes shall be returned within six 
dayes after the breaking up or adjournment of that Assemblie ; and then within 
three days after the chiefe oflQcer of the Towne shall call the Towne to the hear- 
ing of the Lawes so made ; and if any freeman shall mislike any law then made, 
they shall send their votes with their names fixed thereto vnto the General 
Recorder within tenn dayes after the reading of thoss lawes and no longer. And 
if itt appeare that the major vote within that time prefixed, shall come in and 
declare itt to be a nullity, then shall the Recorder signifie it to ye President, and 
the President shall forthwith signifie to ye Townes that such or such lawes is a 
null, and the silence to the rest shall be taken for approbation and confirmation 
of the lawes made : and it is ordered further, that the eleventh laAve made at 
Portsmouth, May 20, 21—1647 is repealed." 

(1 R. I. Col. Recs. 228.) 

In 1658 tlie law was changed, as follows : 

"12. Whereas, it is conceived a wholesome liberty for the whole or major 
parte of the free inhabitants of this collony orderly to consider of the lawes made 
by the Commissioners' Courts : and upon finding discommodity in any law made 
by the sayd court, then orderly to show their dislike, and soe to invalid such a 
law. 

It is therefore ordered and declared by this present Assembly, that from hence- 
forth the Generall Recorder upon [such] pennalt}^ as shall be Judged meete by a 
court of commissioners, shall send in to each towne a coppie of the lawes that are 
made at such courts, soe as they may be delivered to the Town Clarke of each 
towne within ten dales after the dissolution of each court from time to time ; and 
then the townes to have tenn dales time longer to meete and publish the sayd 
lawes, and to consider of them. And in case the free inhabitants of each towne, 
or the major parte of them doe in a lawfull assembly vote down any law, and 
seale up the voates, and send them to the Generall Recorder within the sayd tenn 
dales : and that b}' the voates it doth appeare that the major parte of the people 
in each towne have so dissalowed it, then such a law to bee in noe force ; and 
otherw^ise if that bee not soe done within the twenty dales after the dissolution 
of each court, then all and every law to be in force : And however all to be in 
force that are not soe disannulled, and the townes shall pay the charge of sendinge 
the foresayd coppies. Further, the Recorder is to open the sayd voates before 
the President, or in his absence, before the Assistant of the Towne where the 
Recorder lives, and then the President or such Assistant to give notice to the rest 
of the majestrates." 

(1 R. I. Col. Recs. 401.) 



64 

This allowed ten clays for the recorder to furnish each town 
clerk with a copy of the acts of the session, and ten more for the 
towns to consider them and, if they disapproved them, to notify 
the president and thus to annul the statute. The provision that 
any law not so disannulled was nevertheless to go into effect 
marked, however, the beginning of the decline of this peculiar 
system. Had it been provided that no law of the general 
assembly was to go into effect until approved by the towns, the 
system would have been more permanent. 

In 1660 this was amended, as follows : 

" Whereas, there is a certayne clause in a law made at Warwick, November 
the 2d 1658, toutching the people's libertie to disannull any law to Ihem pre- 
sented from the Courts of Commissioners, as there is premised: by which clause 
it seems the privilidges are not soe clearly evinced as the Commissioners thereby 
and therein did intend in formeinge the same law, in regard of this cJawse (that 
the major parte of each Towne in the CoUouy must send in their voates of their 
towne to the General! Recorder, to disallow any law that should be soe presented, 
within tenn dales after it is presented to the Towne, if they conceive such, or any 
such law not wholesome). It is therefore ordered, by the authority of this 
present Assembly, that the aforesaid clause be rectified, aud that instead thereof 
it be enacted, and it is heieby enacted, that there be three months time, that is 
to say, fowre score and six daies alowed for the returne of the voates from each 
towne unto the General Recorder after that such lawes be presented (in such 
order and time as by the foresayd law is provided) to each towne : 

As alsoe wee further enact that it apearinge by the returne of the voates, that 
the major parte of the free inhabitants of this Collouy have disapproved or dis- 
annulled any such law or lawes, then the sayd law or lawes to be of noe force ; 
although any one towne or other should be wholly silent therein, or otherwise 
such law or lawes to be in fojce according to the true intent of the other parte or 
clause in the abovesayd law of November the 2d 1658 ; and this foresayd addi- 
tion to stand and be in full force, any law or lawes, or any clawes or clawses in 
any former law contayned, to the contrary uotwithstandinge." 

(1 R. I. Col. Recs. 429.) 

Besides allowing more time to disannul a law (three months in- 
stead of ten days), a majority of all the votes in the colony was 
substituted in the place of a majority in each town. This was a 
great step towards consolidation of the united government. 

The new charter was obtained in 1663, but it made no change in 
the relation of the towns to the colony. In 1664 : 

"It is ordered and inacted by this Assembly. That whereas ther are 
severall lawes extant amongst our former lawes inconsistant with the present 
Government, as houlding of Courts of Commistions, and repealing of the acts 
of the General Assemblyes by votings in town meetings : together with several 
other of licke natuer. which are contradictory to the forme of the present gov- 



65 

ernment, erected by bis Majestyes gratious letters pattent, tbat all sucb lawes 
be declared null and voyd, and tbat all otber lawes be of force vntil some otber 
course be taken by a Geuerall Assembly for better provition hearein : and furtber, 
wee declare, tbat all obligations formerly taken to tbe Court of Trialles to be 
houlden in Newport, the second Tusday of this instant, March, be of full force 
and vertue to make each parson responsible to the sayd court." 
(1 R. I. Col. Recs. 27.) 

It is to be noticed that althoug-h this act an nulled the laws under 
which the towns could annul the acts of the General Assembly, 
it was silent as to those laws under which the towns could initiate 
new laws. They would seem to have become extinct merely 
through non-use. It would seem, also, that the act was intended 
to be provisional only ("vntill some other course be taken by a 
General Assembly for better provitiou herein." " From these pro- 
visions," says Governor Hopkins, "came the common story, that 
some towns had heretofore repealed acts of the General Assembly." 
(7 R. I. Hist. Colls. 45.) This remark shows that at the time Gov- 
Hopkins wrote the people had forgotten what tbe original powers 
of the towns were. AVe find, therefore, that the power of the 
freemen of the towns to annul the laws passed by the general 
assembly lasted through the life of the first charter and was not 
abolished until after the adoption of the second charter, while the 
power of the freemen of the towns to initiate legislation has never 
been formally abolished, but is only lost through non-use. It is 
evident that the original towns or colonies of Rhode Island pos- 
sessed governmental powers of their own before there was any 
united colony; that they formed the colony, subsequently the 
State, and gave up some of their powders to it; that new towns 
were settled and admitted to the union upon the same footing as 
were original towns, with all the rights, powers^ and duties of 
the four original towns ; that little by little the power of the colony, 
afterwards the State, has increased and that of the towns has 
diminished; that this has been done with their consent; but 
among the rights still reserved to the towns and cities of this 
State are the right of existence and the right to manage their own 
local affairs, free from the interference or control of the general 
government except through the exercise of its undoubted power 
to pass general laws applicable to all alike. 

The importance of the subject of the rights of our towns to the 
control of their own affairs, the increasing indifference or ignor- 
ance about them, and the continued assumption of illegal powers 
by the general assembly, in violation of the principles of Rhode 



66 

Island constitutional law, have required this lengthy examination 
of these rights. 

The act creating a special board of canvassers and registration 
for the city of Providence only (G. L, cap. 8, sec. 22, amended, 
cap. 363) ; the act permitting the commissioner of public works in 
the city of Providence to employ a secretary (P. L. cap. 813) ; 
V the act proposed for passage last spring directing the governor 
^to appoint a board of police and license commissioners for the 
feity of Providence, with extraordinary powers not only to ad- 
minister the law but also to make it, to be paid large salaries by 
%e city without being subject to its control ; and, lastly, the pro- 
posal for a special act by the general assembly to make the water 
bills of those occupying buildings in the city of Providence only, a 
lien upon the land of the owner (the user often not being the 
owner, and thus creating an obligation whereby one was to be- 
come bound, without his consent, to pay the debt of another) — all 
show the necessity of new constitutional restraints upon the further 
and continued encroachment by the general assembly upon the 
rights of our towns and cities to manage their ow^n local affairs. 
This can only be done through a constitutional convention, and a 
constitutional convention we ought to have. 

The requisites of a constitution should be borne in mind in at- 
tempting to frame a new one 

It should contain, of course, a statement of the fundamentals of 
government. This includes an introduction, & declaration, or bill 
of rights (a statement of personal rights guaranteed to every one 
and inviolable by the government), a scheme of public manage- 
ment and administration (or division into the three co-ordinate de- 
partments, the legislative, the judicial, and the executive, with a 
statement of the powers of each and how exercised). 

Then should follow articles relating to the electorate, to educa- 
tion, to the now important subject of corporations, their forma- 
tion, powers, and duties, including municipal corporations, and 
how they may form and amend their own charters, including a 
mode for changing from town to city government. Other articles 
may be needed, or sections may be needed in some of the articles 
already enumerated, to introduce new safeguards or restrictions 
that experience has shown cannot be successfully carried into ef- 
fect through ordinary legislation. 

And lastly, so far as possible, mere legislation should not go into 
the constitution. 



67 



Let us pass in review some of the chang-es required to make the 
constitution what it should be in the light of the state of develop- 
ment of constitutional law of the present day. 

There should be distinct recognition of the right of towns and 
cities to self-government. To make this effective it is necessary to 
provide, as do the constitutions of Missouri, California, and Wash- 
ington, how towns and cities may make and alter their own char- 
ters by their own conventions, subject, of course, to the constitu- 
tion and laws of the State. It is necessary also to provide that 
although the general assembly may pass general laws, no general 
laws shall interfere with the rights and powers of towns and cities 
incorporated according to law, nor shall any special law be passed 
affecting any town or city. 

The experience in the three States named shows the scheme 
works well. 

In 1876 the city of St. Louis framed its own charter in the man- 
ner suggested, through a convention of thirteen of its freeholders 
elected by its own voters, as authorized by the constitution of 
the State. This charter has been recognized generally by authori- 
ties on city government as the best American model for charter 
makers. (Oberholzer, The Referendum in America, 91.) 

In Ewing v. Oblitzelle, 85 Mo. 64, it was held that there is no 
constitutional objection to allowing voters of a city to frame and 
adopt their own charter of government, if authorized by the State 
constitution to do so. 

Kansas City, Mo., framed its own charter in the same way, in 
1889, and the result proved to be satisfactory. 

The measure having worked well in Missouri, when the consti- 
tutional convention of California met, in 1879, it was proposed to 
incorporate the same provision in the constitution. The politi- 
cians opposed it, professing great fear lest San Francisco, the onl}^ 
city in the State containing the requisite populatioa of 100,000, 
would break loose from the rest of the State and set up a free gov- 
ernment of its own. 

"This is the boldest kind of an attempt at secession," said one 
speaker. The opposition was so great that the friends of the 
measure were compelled to accept an amendment that such a 
charter, accepted by the voters of the city, must be approved, also, 
by the legislature — to be approved or rejected as a whole, how- 
ever, without power of alteration or amendment. 

For years the active operation of the " city hall gang," a potent 



68 

source of corruption in San Francisco, succeeded in defeating- all 
charters drawn under this clause of the State constitution, but at 
last a majority voted to approve a charter thus framed by its own 
convention. 

The scheme meeting with popular approval throughout the 
State, the constitution was amended to allow all cities of more 
than 10,000 inhabitants to frame their own charters. The second 
charter framed, by Los Angeles, under this power was approved by 
its voters and by the legislature, and is now in successful opera- 
tion. 

Oakland, Stockton, San Diego, and Sacramento have also framed 
their own charters, and they are now in effect and have proved 
successful. 

The system working so well, by constitutional amendment in 
1890 the right w^as extended to any city containing over 3,500 in- 
habitants. 

In 1892, by constitutional amendment, it was provided that the 
charters thus framed and adopted shall become the organic law of 
the cities adopting them and shall supersede all laws inconsistent 
therewith, thus depriving the legislature of the power of inter- 
fering with them in any way by the passage even of general laws. 

The constitution of Washington, of 1890, contains similar pro- 
visions. Those who fear the extension of this principle that the 
people can govern themselves, should read the debates in the con- 
vention and follow the subsequent history of this clause. Seattle 
has a charter thus framed, and the city comptroller writes that the 
" plan is acknowledged to be better than depending upon the legis- 
lature." Tacoma, in 1890, also adopted a charter of its own mak- 
ing. The mayor writes: "The new is fell to be superior to the 
old method." 

Oberholzer concludes his examination of this subject : 

"The interests of all our large cities are totally diverse from the interests of 
the remainiug sections of the States in which they are placed by our artificial 
arrangement of boundaries. We have massed different peoples together who 
have no mutual sympathies, who are opposite in political and social standards, 
and antipodal in wants and governmental requirements. For the good of the 
cities themselves, and likewise for the good of the States, it is necessary that our 
large cities should be free cities." 

An excellent commission has submitted lately a model charter 
for the city of Providence. Why should not its electors be allowed 
to decide upon its adoption ? But even if adopted by the general 



69 

assembly in the form recommended, what guarantee is there the 
general assembly will not chaDge it at its own wdll, irrespective of 
the wishes of the citizens of Providence ? Should not the possi- 
bility of such a course be removed by a constitutional inhibition ? 
This can only be done through a constitutional convention. 

The complex civihzation of the present day, the increased power 
of a sometimes unscrupulous press, with facilities hitherto un- 
dreamt of for prying into men's private affairs and taking snap 
photographic portraits, renders it necessary to add to the bill of 
rights new safeguards guaranteeing the right to privacy of those 
who are not recognized public characters or engaged in public 
affairs. The extent of the necessity for such a safeguard can only 
be known to those who have examined the subject and have fol- 
lowed the many recent cases in the courts where private indi- 
viduals have tried, too often unsuccessfully, to defend themselves 
or those dear to them from undue publicity. See the excellent 
article od the subject by Warren and Brandeis, IV Harvard Law 
Review, 193, where may be found the draft of a law to secure this 
recognition of the right to privacy. But it requires more than a 
law. It must find its appropriate place in the bill of rights. 

Our English forefathers had laws against unjust imprisonment, 
but they were not eoough until the habeas corpus act was passed 
and became accepted as a constitutional guarantee and in the 
United States was placed in our bill of rights. 

We may not all agree as to what subjects the general assembly 
shall be forbidden to interfere with. Yet all must agree that there 
are such subjects. A glance at any of the recent State constitu- 
tions will show a concurrence in this idea and similarity in limit- 
ing the field of action of the State legislatures. 

There would seem to be every reason w^iy the old inhibition 
against the passage of ex post facto legislation should be made to 
include civil legislation as well as criminal legislation. 

While the general assembly should have powder to pass general 
laws affecting alike all towns and cities wdthin specified classes, it 
should be deprived of power to interfere in the local affairs of any 
tow^n or city. 

The costs of suits wdiere small sums are involved are so great 
that, in the interest of the large class of mechanics and others, 
wages or salaries of five hundred dollars a year, say ten dollars a 
week, should be exempt from attachment. (Personally the writer 
would thus exempt twenty dollars a week.) 



TO 

Exemption of propertj^ from taxation when held for school, 
religious, or charitable purposes was well enough in the infancy 
of the colony, when there was little accumulated wealth. The 
necessity no longer exists. The time has come when the state- 
ment in Art. I, Sec. 2, " the burdens of the State ought to be fairly 
distributed among its citizens," should be made literally true. 
Of course we cannot take away the right to exemption from taxa- 
tion if it has become vested. But we can and should prevent any 
farther extension of the old doctrine. 

Witnesses in criminal cases require more protection than they 
now have. The detention and imprisonment of such witnesses, in 
some instances, has worked great hardship. To say nothing of the 
injustice to them, it is bad public policy, because witnesses in crim- 
inal cases, fearing unjust detention, will avoid giving information, 
to escape summons, and thus crime is made more difficult of proof. 
This is no theoretical matter, but what actual experience proves. 

The old mischievous theory that a claim against the State can- 
not be collected, because a judgment against the State cannot be 
be enforced, should be dropped. Every time that the State takes 
private property- for public use, and pays for it what a jury awards, 
a claim against the State is enforced and collected. Why, then, 
should not other claims against the State be made matter for 
judicial cognizance? It would be as logical to claim that all plans 
between nations for arbitration must fail because the award cannot 
be enforced. As a matter of fact, we know that arbitration works 
successfully. The United States has provided a court of claims 
in Washington, to entertain and decide suits by private parties 
against the United States, and the result is completely successful. 
It is time now to put the principle into the constitution of our 
State. 

To guard against the public scandal and disgrace that have oc- 
curred in more than one State, it is necessary to prohibit allow- 
ance of any extra pay to any public officer. Massachusetts has 
sinned outrageously in this particular, and our general assembly is 
showing a tendency to follow in her footsteps. See the article on 
"Massachusetts as a Philanthropic Robber," by Charles Warren, 
in 12 Harvard Law Rev. 316. 

As to the qualifications for the suffrage, they should be made as 
simple as possible. It is a mistake to have different classes of 
voters for different purposes. For it requires a complicated system 
of registration, makes fraud more easy, creates a system of caste 



71 

incompatible with American principles of government and be- 
tokens a want of confidence in the democracy that we profess to 
believe in. Upon comparison of States setting up different requi- 
sites, such as an educational qualification or the ownership of 
property, real or personal, with other States without these prere- 
quisites to suffrage, we find that however advantageous they may 
be in theory, in practice they do not work according to the theory 
that led to their adoption. The time has come when they should 
be all swept away and the basis of suffrage be accepted as fixed 
by the arrival at 21 years of age of every man and woman not dis- 
qualified through crime or mental incapacity. Coupled with this 
the State should insist upon the education of all, to fit these voters 
to protect the interests of the State, and included in such educa- 
tion should be the teaching, not of religion, but of the highest 
morality, including political morality. We can only consider such 
a desirable state reached when candidates aspiring to ofiice cease 
to offer bribes, directly or indirectly, and when voters ready to re- 
ceive bribes can no longer be found. 

This State has retained longer than any State in the Union its 
property qualifications upon the exercise of the suffrage. Yet in 
no respect do we find this State better governed than are other 
States where there are no such restrictions. As a result of practi- 
cal experience, therefore, no harm can come from their abolition, 
and the time has come when we should carry into effect our pro- 
fessed belief in a democratic form of government. It is safer to 
to trust the whole of the people than any one section of it. 

The extension of the suffrage to women is but a matter of time. 
It is gaining ground everywhere and will reach us before long. 
All the argument is in its favor, and there is nothing but conserva- 
tism and sentiment to oppose it. It is the part of wisdom to 
provide for the impending change in public opinion that will come 
when women themselves want the suffrage. When they becoine 
convinced of its wisdom, that it will benefit them as well as the 
State, they will ask for it and they will get it. That it will benefit 
the State to extend the suffrage to women follows from the fact 
that no State is in a normal condition when any one large class of 
its citizens is excluded from the suffrage. Consider, for instance, 
the existing right of the husband to administer without accounta- 
bility upon the personal estate of his wife dying intestate — a polite 
method of designating his legal right to steal his deceased wife's 
property. It is the last relic left of the old law, or want of law. 



72 

wheD, upon death of the owner of personal property, it became 
the property of the one that first seized it. Who can doubt that 
if women voted and took part as members of the general assembly 
in framing our laws the last vestige of this barbarous law would 
disappear ? 

It would be well, therefore, to make it possible for the general 
assembly to admit w^omen to the suffrage when pubHc opinion 
shall have rendered it feasible to take that course. 

The great advantages gained in England by transferring all 
questions of contested elections to the determination of the judici- 
ary should induce us to follow their example. When Thaddeus 
Stevens came into the national house of representatives one morn- 
ing, asked what business was on and was told it w^as a contested 
election case, he said : " Well, which fellow is our damned rascal ? 
AVe will admit himy As the practice so frankly admitted is un- 
questioned, it is time the constitution should put a stop to its 
possibility. 

The pay of the members should not be left open to the possi- 
bility of any " grab act " or " back pay act " nor should it be pos- 
sible to distribute public offices among the members, as the " May 
Dealers " did in 1884. 

The newdy developing disposition to appoint public officers for 
towns and cities in the general assembly, who shall be paid by the 
towns and cities against their protest and without control over the 
officers thus appointed by the general assembly, should be checked 
by providing that all such officers appointed by the State shall be 
paid by the State. This can only be done by incorporating it into 
the constitution. 

The tendency of the latest constitutions is to leave the formation 
of all corporations, even those having power to exercise of rights 
of eminent domain, to the operation of general laws to be framed 
by the legislature and to be construed by the judiciary. Public 
notice should be required of all applications for the exercise of 
this right ; no monopoly should be allowed for more than twenty 
years to any corporation, in return for the service to the public 
rendered and for adequate consideration only ; and the judiciary 
should be made the judge of what constitutes such contracts, 
monopolies, franchises, special privileges, and adequate considera- 
tion. 

There can be no excuse for a bicameral legislature, if both cham- 
bers represent the same constituency. As a check upon the arbi- 



73 

fcrary exercise of power, different motives and considerations 
should influence the members of the two houses in concurring- 
upon measures proposed. There is good reason for adhering- to 
equal representation of every town and city in our senate. It is 
in accord with what is sought herein to be shown, the indepen- 
dent origin, the political supremacy, and the historical and con- 
stitutional development of these units of our political being. To 
correct the inequality of representation resulting therefrom, it is 
all the more imperative the representation in the lower house 
should be based upon population only, without regard to town 
lines. Therefore the State should be divided into districts, say 
one hundred or perhaps more in number, of equal population, as 
nearly as may be, each to elect one representative. Provision 
should also be made in this house for minority representation, in 
accordance with some plan easy of comprehension and applica- 
tion. This would be statesmanlike, practical, and effective. 

Our State should no longer remain one of the three States in 
which the governor has no veto power, and that power should be 
given to him in such a form as to make it effective. The experi- 
ence of other States has shown that he must be given power to 
veto severable parts of a bill instead of being given power to veto 
a bill only as a whole. 

An independent judiciary, consisting of able, upright, learned 
judges, unbiased by political considerations or party affiliations, 
can be best secured by their appointment by that branch of the 
government that can be held the most directly responsible for 
the proper exercise of this power. As the executive is that branch, 
this power should be entrusted to him. The judges, once ap- 
pointed, should be removable only because of old age or for good 
cause. That our present poor system has worked as well as it has 
is a tribute to the good sense and political capacity of our people, 
but is no reason for its continued existence. 

How many years is it, however, since any man has been raised 
to the bench in Rhode Island unless he belonged to the dominant 
political party ? It is time to inaugurate a system under which 
the best fitted men may be placed upon the bench, irrespective of 
the party to which they belong. This can only be done through 
a new constitution. 

Of all the devices to promote honesty in the administration of 
public affairs and to prevent maladministration, experience shows 
that publicity is one of the most potent. For this reason all offi- 

10 



•74 

cers of the State should make public returns of all moneys received 
and spent in the discharge of their duties, and similar returns should 
be required of all handling money for election purposes or for the 
procuring or preventing the procuring of legislation, directly or 
indirectly. We have adopted a part of this system by requiring 
the publication of the accounts of all money received and paid by 
State officers. The experience of other States and of England 
proves that we must now extend this principle on the lines indi- 
cated. 

The old inhibition of the grant of monopolies is now success- 
fully evaded in the general assembly by coupling the illegal grant 
of the particular monopoly with some detriment to be incurred or 
consideration to be paid by the corporation or party to whom the 
grant is made. It matters not that the consideration paid is in- 
adequate, for the grant has thereby become a contract. No matter 
how unjust or burdensome to the State, having thus become a 
contract through the cunning of the corporation lawyers, it cannot 
be amended or varied by the State except with the consent of the 
corporation, being protected by the United States constitution, 
(Art. 1, Sec. 10) which forbids any State from passing any law im- 
pairing the obligation of a contract. 

This can only be prevented by a new clause in the bill of rights 
forbidding the making of such contracts by the general assembly 
except for adequate consideration and for a limited number of 
years only. 

With publicity made requisite by law, and proper power vested 
somewhere to compel the giving of the requisite testimony con- 
cerning the management of public business, when a senator is 
accused by his colleague of the improper and illegal exercise of 
influence to procure funds for campaign purposes, the inquiry 
could not be successfully stifled, as we have witnessed in a neigh- 
boring New England State this summer. 

It should be made possible to know whence comes the money, 
and how it is distributed, that keeps up legal protection over 
favored classes and individuals in this country and secures nom- 
ination and election to public office, often to the astonishment of the 
people, both in national and in state legislation, of the nominees 
of these interests. 

The national committee of republicaDS and independents ap- 
pointed by the independent conference, in New York, July 22, 1884, 
made its report at the close of the presidential campaign, setting 



75 

forth in details the source of all its receipts for campaign purposes 
of $23,836.17, and every item of expenditure, amounting to $23,- 
408.33, leaving a balance on hand of $427.84. The account books, 
subscription lists, and vouchers were carefully examined and com- 
pared with the account submitted, by a competent auditing com- 
mittee who certified the amount was correct and true. 

This is what the constitution of the State should require in 
every political campaign. The above incident is particularly note- 
worthy as showing how it is practically possible to accomplish 
this, and therefore the law should require it. 

It is acknowledged that organization in political matters is 
necessary, as it is in other matters. But organization in political 
matters is of public concern, and to secure honesty in political or- 
ganizations we have a right to exact publicity. The political organ- 
ization and its doings that require secrecy, require it to conceal 
wrong- doing. 

It is always a mistake to commit the State to fixed periods only 
for revisions of the constitution. It is a denial of the right of the 
people to make and alter their constitution of government as neces- 
sity may demand. It is better to provide that the general assembly 
and the people, too, may suggest either amendments or a constitu- 
tional convention, as occasion may require. We have no right to 
make the rights of our successors any different from what our own 
rights are, with regard to the organic law of the State. Our fore- 
fathers had no right to limit our rights or to make them any differ- 
ent from what their own were over these matters. The principle 
always to be followed is the one expressly stated in Art. I, Sec. 1, 
and it is maintained herein that no limitation can be placed upon 
that principle — the right of the people, now and in all future time, 
to make and alter their constitution of government by the voice of 
the majority of the electors. A provision for a convention to 
revise the constitution at stated times, limits, by implication, the 
power to hold such a convention at any other time, and is, there- 
fore, to be avoided. For the right of the people to make and alter 
their constitution of government is absolute, and therefore not 
be limited, expressly or by implication. This method has been 
tried in other States and found wanting. Why attempt, then, to 
introduce here what has proved to be faulty elsewhere ? 

With these considerations in mind, the following essay at a 
draft of such a constitution as Rhode Island ought to have is 
submitted to the people of this State : 



11 



DRAFT OF A NEW CONSTITUTION 



FOR THE 



STATE OF RHODE ISLAND 



We, the people of the State of Ehode Island and Provi- Preamble. 
dence Plantations, grateful to Almighty God for the civil and 
religious liberty which He hath permitted us to establish and 
so long to enjoy, and looking to Him for a blessing upon our 
endeavors to secure and to transmit unimpaired to succeed- 
ing generations this precious inheritance, do ordain and estab- 
lish this constitution of government. 

Article I. 



Declaration of Certain Constitutional Rights and Principles. 

In order to secure the religious and political freedom Declaration 
established by our revered ancestors and to preserve them 
for our posterity, we declare that the essential and unques- 
tionable rights and principles hereinafter stated shall be 
strictly established, maintained and preserved, and shall be 
of paramount obligation in all legislative, judicial, and ex- 
ecutive proceedings. 

Section 1. In the words of the Father of his Country, 
we declare that " the basis of our political systems is the 
right of the people to make and alter their constitutions of 
government ; but that the constitution which at any time ex- 
ists, till changed by an explicit and authentic act of the 
whole people, is sacredly obligatory upon all." 

The electors of this State, including those who may be al- 
lowed to vote thereon, have therefore the inherent, sole, and 
exclusive right, by a majority of those voting thereon, to 



Rights of the 
people to make 
and alter their 
constitution. 



78 



Objects of free 
governments. 
How laws 
should be 
made. 



The constitu- 
tion of the 
United States 
is the supreme 
law. 

Acknowledg- 
ment of the 
right of local 
self-govern- 
ment of the 
State and of 
the town or 
city. 

Religious free- 
dom secured. 



regulate their internal government and to alter, abolish, and 
reframe the constitution whenever they may deem it neces- 
sary : Provided, that such change be not repugnant to the 
constitution of the United States. 

Sec. 2. All free governments are instituted for the pro- 
tection, safety, and happiness of the people, through the 
equal enjoyment by all of life, liberty, and the rights of con- 
science. All laws therefore, shall be made for the good of 
the whole ; and the burdens of the State shall be fairly dis- 
tributed among its citizens. 

Sec. 3. The constitution of the United States is the su- 
preme law of the land. But the right of local self-govern- 
ment in the State is a constitutional right that the national 
government cannot infringe ; and the right of local self-gov- 
ernment in the town or city is also a constitutional right that 
the State cannot infringe. 

Sec. 4. Whereas, God has created the mind free and where- 
as, a principal object of our revered forefathers, in their settle- 
ment of this State, was '' to hold forth a lively experiment, that 
a flourishing civil State may stand and he hest tnaintained with 
full liberty in religious concernments f' we, therefore, declare 
that no man shall be compelled to frequent any church, nor to 
support any religion, religious worship, church, or ministry 
whatever, except in fulfillment of his own voluntary contract ; 
nor shall any man be enforced, restrained, molested, nor bur- 
dened in his body or goods ; nor disqualified from holding 
any office, nor any position of public trust ; nor from voting ; 
nor from serving on juries ; nor as a witness in any court of 
law ; nor rendered incompetent nor discredited as a witness ; 
on account of his religious belief or want of religious belief ; 
nor otherwise suffer in any manner whatsoever on account 
of his religious belief or want of religious belief; and we 
therefore declare that every man shall be free to worship 
God, or to abstain from the worship of God, according to 
the dictates of his own conscience ; and to profess, and by 
argument to maintain, his opinion in matters of religion, and 
that the same shall in no wise diminish, enlarge or affect his 
civil capacity. All persons shall be alike protected in the 
peaceable and quiet enjoyment of their religious sentiments, 
conyictions, and duties. No church, sect, denomination, nor 
religious belief shall be preferred over another, and no public 



79 



money nor public property of any kind shall be used directly 
or indirectly in aid of any religious belief, church, sect, or 
religious institution : Provided, always, that nothing in this 
section contained shall ever excuse any act of licentiousness 
or justify any act inconsistent with the peace and safety of 
the State. 

Sec. 5. Every person within this State ought to find a cer- 
tain remedy, through recourse to the laws, for all injuries or 
wrongs which he may receive in his person, property, or char- 
acter. He ought to obtain right and justice freely and 
without purchase, completely and without denial ; promptly 
and without delay ; conformably to the laws. 

Sec. 6. Legally, all men are born free and equal and 
have certain natural inherent and inalienable rights, among 
which are : the right to defend and freely enjoy their lives 
and liberties ; to acquire, possess, protect, and enjoy property 
and reputation ; to worship God according to the dictates of 
their individual conscience; to communicate freely their 
thoughts and opinions on all subjects (subject, however, to the 
law concerning slander and libel, and to responsibility for the 
abuse of that right) ; to assemble for their common good in a 
peaceable manner, to instruct their representatives and to 
apply to those invested with the powers of government for the 
redress of grievances or for other proper purposes, by petition, 
address, or remonstrance ; to keep and bear arms in defence 
of themselves, their homes, and their property, or in aid of 
the ciidl power Avhen thereto legally summoned (but subject 
to any law enacted by the general assembly to prevent 
the carrying of concealed weapons) ; the right to privacy, 
except when engaged in public service or in some public 
manner. 

Sec. 7. The right of the people to be secure in their per- 
sons, papers, and possessions, against unreasonable searches 
and seizures shall not be violated; and no warrant shall 
issue, but on complaint in writing, upon probable cause, sup- 
ported by oath or affirmation, and describing as nearly as 
may be the place to be searched and the persons or things 
to be seized. 

Sec. 8. No person shall be held to answer for a crime 
which shall be punishable by death or by imprisonment in 
the State prison, unless on presentment or indictment by a 



How the laws 
should be ad- 
ministered. 



Individual 
rights secured. 



Search war- 
rants and 
seizures, not 
favored. 



Provisions 
concerning 
criminal pro- 
ceedings. 



80 



Bail, fines, and 
punishments 
not to be ex- 
cessive. 



Bail and habeaf: 
corpus. 



Rights of the 
accused. 



Eights of de- 
fendants In 
civil actions. 



What laws the 
general assem- 
bly may not 
pass. 



grand jury, except in cases of impeachment, or in cases 
arising in the land or naval forces or in the militia when in 
actual service in time of war or public danger. No person 
shall be subject to be twice put in jeopardy for the same 
offence. 

Sec. 9. Excessive bail shall not be required, nor exces- 
sive fines imposed, nor cruel punishments inflicted ; and all 
punishments shall be proportioned to the offence. 

Sec. 10. All persons imprisoned shall be bailable by suffi- 
cient surety, unless for offences punishable by death or by 
imprisonment for life when the proof of guilt is evident or 
the presumption great. The privilege of the writ of habeas 
corpus shall not be suspended, unless in case of rebellion or 
invasion the public safety shall require it ; nor ever, without 
the authority of the general assembly. 

Sec. 11. In all criminal prosecutions the accused shall en- 
joy the right to a speedy and public trial by an impartial 
jury ; to be informed of the nature and cause of the accusa- 
tion, to be confronted with the witnesses against him, to have 
compulsory process for obtaining them in his favor, to have 
the assistance of counsel in his defence, and shall be at lib- 
erty to speak for himself. 

Sec. 12. No person shall remain imprisoned in any civil 
action after he shall have delivered up his property for the 
benefit of his creditors in the manner prescribed by law ; nor 
shall any person be arrested nor imprisoned in any action 
based upon contract, unless he shall have committed some 
fraud or is about to abscond from or has absconded from the 
State ; but the general assembly may secure the enforcement 
of a judgment at law or decree in equity by appropriate and 
adequate legislation. 

Sec. 13. No laws shall be passed : 

1, That are ex j^ostfctcto, whether criminal or civil; 

2, That impair the obligation of any contract ; 

3, That grant any irrevocable privilege, franchise, or im- 
munity, except as hereinafter is specified ; 

4, That grant any special privilege or immunity to any 
one of a class which, upon the same terms, shall not be 
granted to all of that class ; 

5, Regulating the internal affairs of any town or city, ex- 
cept by general laws applicable to all of like class ; 



81 



6, Establishing slavery or involuntary servitude, except 
as a punishment for crime, whereof the party shall have 
been duly convicted ; 

7, Allowing lotteries, games of chance, the sale of tickets 
in either, or gambling ; 

8, Subjecting to garnishment salaries or wages due for 
personal services under ten dollars per week, or at that 
rate ; 

9, Making any distinction between resident aliens and 
citizens in reference to the possession, enjoyment, or 
descent of property ; 

10, Exempting any property from taxation, or surrender- 
ing by any contract, grant, or otherwise the power to 
tax any property. 

Sec. 14. No man shall be comj^elled to give evidence 
criminating himself ; but he may testify in his own behalf, in 
which case he shall be deemed to have waived this exemption, 
and he shall then be subject to cross-examination. The 
omission to testify in his own behalf, however, shall not sub- 
ject him to comment. 

Sec. 15. No one shall be deprived of life, liberty, or prop- 
erty, except by due process of law. 

Sec. 16. No witness shall be unreasonably detained, nor 
confined in any building where criminals are imprisoned, 
nor shall he be detained for the purpose of securing his testi- 
mony longer than may be necessary to take his deposition. 
He shall be discharged upon giving sufficient security for his 
appearance at the trial. If unable to do so, his deposition 
shall be taken in the manner prescribed by law, and in the 
presence of the accused and his counsel, or without their pres- 
ence if either or both shall fail to attend after reasonable no- 
tice of the time and place of the taking thereof. Any deposi- 
tion authorized by this section shall be received as evidence 
at the trial, if the witness shall be dead, absent from the 
State, or physically unable to attend. 

Sec. 17. Every person shall be presumed innocent until 
he is pronounced guilty by the law ; and no act of severity 
which is not necessary to secure an accused person shall be 
permitted. 

Sec. 18. The right of trial by jury shall remain inviolate. 
The legislature may, by general law, provide for a change of 
11 



No one com- 
pelled to in- 
criminate 
himself. 



Life, liberty, 
and property- 
protected. 

Protection of 
witnesses. 



Presumption 
of innocence: 
riyrhts there- 
under. 



Trial by jury 
shall remain 
inviolate. 



82 



Protection of 
private prop- 
erty. 



Fee of land 
taken for pub- 
lic use. 



Eights of fish- 
ery. 



Military is sub- 
ordinate : mar- 
tial law not 
favored. 



Quartering sol- 
diers in house, 
forbidden, 
how far. 



The truth a de- 
fence for libel, 
when. 



Bribery for- 
bidden. 



No State officer 
to take any 
fee. 



venue, in case an impartial trial cannot be had in the county 
where the crime was committed. 

Sec. 19. Private property shall not be taken, damaged in 
value, nor destroyed for private use. It shall not be taken, 
damaged in value, nor destroyed for public use, without just 
compensation which must be paid before the taking. In all 
cases the necessity for the exercise of this power must be first 
determined by the supreme court and the amount of compen- 
sation must be determined by a jury in a manner to be deter- 
mined by law, and the amount of compensation shall be deter- 
mined without reference to any benefit that may be conferred 
by betterment or otherwie. The fee of land taken for any pub- 
lic use shall remain vested in the owner thereof, his heirs and 
assigns, subject to the use for which the land was taken. 

Sec. 20. The people of this State shall continue to enjoy 
and freely exercise all the rights of fishery and the privileges 
of the shore to which they have been heretofore entitled 
under the charter and usages of this State. But no new 
right is intended to be granted, nor any existing right im- 
paired, by this declaration. 

Sec. 21. The militarj^ shall be held in strict subordination 
to the civil authority. And the law martial shall be used 
and exercised only in the army, navy, or militia in actual 
service in time of war or insurrection. 

Sec. 22. No soldier shall be quartered in any house, in 
time of peace, without the consent of the owner ; nor, in time 
of war, but in a manner to be prescribed by law. 

Sec. 23. In all trials for libel or slander, both civil and 
criminal, the truth, unless published or uttered from malicious 
motives, shall be sufficient defence to the persons charged. 

Sec. 24. Any person Avho shall, directly or indirectly, 
offer, giA^e, or promise any money or thing of value, testi- 
monial, privilege, or personal advantage to any executive or 
judicial officer, or member of the general assembly, candidate 
for any public office, or an elector, to influence him in the per- 
formance of any of his j)ublic or official duties, shall be guilty 
of bribery and shall be punished as shall be provided by law. 

Sec. 25. No officer of the State nor member of the general 
assembly shall, directly or indirectly, receive any fee, nor be 
engaged as counsel, agent, or attorney in the prosecution of 
any claim or measure for or against the State, before the 



83 



general assembly, under penalty of forfeiting- his office upon 
conviction thereof in a court of justice. 
Sec. 26. The general assembly shall not : 

1, Grant or confer any hereditary emolument, privilege, 
title, or power ; 

2, Attaint any person of treason or felony ; 

3, Make any distinction in social status between any in- 
habitants of this State. 

Sec. 27. Treason against the State shall consist only in 
levying war against it, or in adhering to its enemies and 
giving them aid and comfort. No person shall be convicted 
of treason, except upon the testimony of at least two witnesses 
to the same overt act, or upon confession in open court. No 
conviction of treason or other crime shall work corruption of 
blood nor forfeiture of estate, except during the life of the 
person convicted. 

Sec. 28. Nothing shall at any time be allowed to interfere 
with nor prevent the free, full, and lawful exercise of the 
privilege of suffrage. 

Sec. 29. All persons resident in this State, citizens of the 
United States, are hereby declared to be citizens of this State. 

Sec. 30. The legislature may, by general law, provide a 
method by which citizens may prosecute claims against the 
State. 

Sec. 31. The provisions of this constitution are mandatory 
and prohibitory, unless declared to be otherwise by express 
words. 

Sec. 32. Monopolies are contrary to the genius of a free 
people and shall not be granted, except as herein is provided. 

Sec. 33. No extra compensation shall be made to any 
public officer, committeeman, commissioner, servant, or em- 
ploye, agent, or contractor of the State, town, or city, after 
services shall have been rendered or contract made. 

Sec. 34. No grant of exclusive, separate public emolument 
or privileges shall be made to any man or set of men, nor to 
anyone, except in consideration of public services ; and every 
grant of a franchise, charter, privilege, or exemption shall 
remain subject to revocation, alteration, or amendment. 

Sec. 35. The enumeration of the foregoing rights shall 
not be construed to impair or deny others retained by the 
people. 



Restrictions 
upon general 
assembly. 



Treason. 



Suffrage to be 
inviolate. 



Who are citi- 
zens. 



Claims against 
the State. 



Constitution is 
mandatory 
and prohibi- 
tory. 



Monopolies 
prohibited. 



No extra pay 
to any public 
officer, &c. 



Charters, &c., 
subject to 
revocation or 
amendment. 



Rule of con- 
struction. 



84 



Article II. 



Of Qualifications of Electors. 



Qualifications 
of electors. 



Who shall not 
be permitted 
to vote. 



When right to 
vote may be 
declared for- 
feited. 



Who shall not 
gain residence. 



Electors ab- 
sent from the 
state in the 
military ser- 
vice of the 
United States, 
allowed to 
vote. 



Powers of gen- 
eral assembly 
as to elections. 



Section 1. Every male inhabitant of tliis State, of the age 
of twenty-one years, who has been a citizen of the United 
States for ninety days, who has had his residence and home 
in this State for one year and in the town or city in which he 
may claim a right to vote six months next preceding the time 
of voting, and who shall have been duly registered as pro- 
vided by law, shall have a right to vote in all elections of 
civil officers by the people, and on all questions in all legal 
town, ward, or district meetings. 

Sec. 2. No idiot, insane person, pauper, or person under 
guardianship, or person iion compos mentis shall be permitted 
to vote ; nor shall any person convicted of either giving or 
receiving any bribe for voting, or convicted of any crime and 
punished therefor by imprisonment in the State prison, be 
permitted to be registered nor to vote until the general as- 
sembly shall, by special act, restore the right. The general 
assembly may impose a forfeiture of the right to vote in pun- 
ishment of offences against the fairness or freedom of elect- 
ions, and may, by special act, restore the right. 

Sec. 3. No person in the military, naval, marine, or any 
other service of the United States shall be considered as 
having the required residence by reason of being employed 
in any garrison, barrack, or military or naval station in this 
state, nor by reason of residing upon lands ceded to the 
United States. 

Sec. 4. Electors of this State who in time of war are absent 
from the state, in the actual military service of the United 
States, being otherwise qualified, shall have a right to vote 
in all elections in the State for electors of president and vice- 
president of the United States, representatives in congress, 
and general officers of the State. The general assembly shall 
have full power to provide by law for carrying this article 
into effect. 

Sec. 5. The general assembly shall provide for a registry 
of voters, and for canvassing the voting lists ; prescribe the 
nature of the evidence to be required as to the right of any 
person to vote, the manner of conducting elections, the count- 



S5 



ing of the votes, the authentication of the results, and shall 
enact all laws necessary to cany this article into effect and 
to prevent abuse, corruption, bribery, and fraud in elections. 

Sec. 6. The general assembly may, by general law, extend 
the suffrage to women at any election of school officers or 
upon any measure relating to schools, upon the same quali- 
fications as to men. But such law shall take effect only upon 
its passage by the succeeding general assembly. 

Sec. 7. The general assembly may .extend the suffrage to 
women upon the same qualifications as to men, but such law 
shall take effect only upon its passage by the succeeding 
general assembly. 

Sec. 8. That the will of the people of the State may be 
enforced and the right of representation in the general as- 
sembly by the duly elected representative of the electors 
may be preserved, all cases of contested election shall be 
decided by the judiciary before the next regular session of 
the general assembly. The general asseoibly shall carry this 
provision into effect by appropriate legislation. 

Akticle III. 

Of the Distrihution of Powers. 



Suffrage on 
school matters 
may be ex- 
tended to 
women by gen- 
eral assembly. 



Suffrage may 
be extended 
to women by 
general assem- 
bly. 



Contested 
elections to be 
determined by 
the courts. 



The powers of the government shall be distributed into Three depart- 
the legislative, the executive, and the ernment. 



three departments 
judicial. 



Article IV. 



Of the Legislative Power. 



Section 1. Subject to the constitution of the United This constitu- 

'' tion IS the su- 

States and the laws xDassed thereunder by the congress of the p^'eme law. 
United States, this constitution shall by the supreme law of 
the State, and any law inconsistent therewith shall be void. 
The general assembly shall enact all laws necessary to carry 
this constitution into effect. 

Sec. 2. The legislative power under this constitution shall 
be vested in a general assembly which shall consist of two 
houses, one to be called the senate, and the other the house 
of representatives. The concurrence of the two houses, each 
acting in its own chamber, shall be necessary to the enactment 



General as- 
sembly. 



86 



Enacting style 
of laws. 



Session of £:en- 
eral assembly. 



Members ex- 
empted from 
arrest, and 
privileged in 
debate. 



Quorum. 

Powers of less 
than a quorum. 



Rules of pro- 
cedure ; pun- 
ishments for 
contempts ; 
punishment 
and expulsion 
of members. 

Journal to be 
kept ; yeas and 
nays, when to 
be entered. 



Adjournment 
of general as- 
sembly. 



Pay of mem- 
bers. 



Compensation 
of officers. 



All officers to 
continue in 



of laws. The enacting clause of all laws sliall be, It is 
enacted hy the General Assembly as follows : 

Sec. 3. There shall be a session of the general assembly 
at Providence, commencing on the first Tuesday of January 
in each year. 

Sec. 4. The person of every member of the general as- 
sembly shall be exempt from arrest in any civil action during 
any session of the general assembly and for the two days 
next before and the two days next after any session, and all 
process served contrary hereto shall be void. For any speech 
in debate, in either house or in grand committee, no member 
shall be questioned in any other place. 

Sec, 5. A majority of either house shall be a quorum to 
do business therein ; but a smaller number may adjourn from 
day to day and may compel the attendance of absent mem- 
bers in such manner, and under such penalties, as may be 
prescribed by the rules of the house compelling attendance, 
or by law. The organization of the two houses may be 
regulated by law, subject to the limitations contained in this 
constitution. 

Sec. 6. Each house may determine its rules of proceed- 
ing, punish contempts, punish its members for disorderly 
behavior, and, with the concurrence of two-thirds, expel a 
member ; but not a second time for the same cause. 

Sec. 7. Each house shall keep a journal of its proceed- 
ings. The yeas and nays of the members of either house 
shall be entered on the journal at the request of three mem- 
bers in the senate ; or of five members in the house. 

Sec. 8. Neither house, without the consent of the other, 
shall adjourn for more than four days, nor to any other place 
than that in which they may be sitting. 

Sec. 9. The members of the general assembly shall re- 
ceive compensation for their services and for actual traveling 
expenses paid by them by general law. But their pay shall 
not be increased nor diminished during the term for which 
they are elected. 

Sec. 10. The general assembly shall regulate the com- 
pensation of the governor, and of all other State officers, 
which shall be paid by the State, subject to the limitations 
contained in this constitution. 

Sec. 11. All officers of annual or longer term of election 



87 



or appointment shall continue in office until otlier persons 
are qualified to take their places. 

Sec. 12. All lotteries shall be prohibited in this State. 

Sec. 13. The general assembly shall have no power here- 
after, without the express consent of the people, to incur 
State debts to an amount exceeding in the aggregate, at any 
one time, one hundred thousand dollars, except in time of 
war, or in case of insurrection or invasion ; nor shall it in 
any case, without such consent, pledge the faith of the State 
for the payment of the obligations of others. 

Sec. 14. The assent of four-fifths of the members elected 
to each house of the general assembly shall be required to 
every bill appropriating the public money or property for 
local or private purposes. 

Sec. 15. The general assembly shall, at least once in ten 
years, provide for making new valuations of property through- 
out the State,. as a basis for the assessment of taxes. 

Sec. 16. The general assembly shall also provide by law 
for the annual revision of the list of electors in every town 
and city in the State. 

Sec. 17. No corporation shall be created with the power 
to exercise the right of eminent domaiu, or to acquire fran- 
chises in the streets and highways of towns and cities, except 
by general laws provided for that purpose that shall also 
provide for public notice of the proposal or intention to 
exercise said powers. 

Sec. 18. The general assembly shall provide by general 
law for the creation and control of other corporations and 
the amendments of their charters. The general assembly 
shall not create any municipal corporation. 

Sec. 19. The general assembly shall not adopt any meas- 
ure the effect of which shall be that the State enters into, or 
becomes a i3arty to, any contract granting directly or in- 
directly any monopoly, franchise, or special privilege for more 
than twenty years nor without adequate consideration. The 
supreme court shall be the judge of what constitutes such a 
contract, monopoly, franchise, special privilege, and adequate 
consideration. 

Sec. 20. It shall be the duty of the two houses, u^Don the 
request of either, to join in grand committee for elections, at 
such times and in such manner as may be prescribed by law. 



office until 
successors are 
qualified. 

Lotteries pro- 
hibited. 

State debts not 
to be incurred 
witiiout con- 
sent of people, 
except in what 
cases. 



Private or local 
appropriations 
require a four- 
fifths vote. 



Valuations of 
property for 
purposes of 
taxation, when 
to be taken. 

List of electors 
to be revised 
annually. 



Certain cor- 
porations to be 
created only 
by act of gen- 
eral assembly. 

Notice of pen- 
dency of peti- 
tion to be 
given. 

General assem- 
bly to provide 
by general law 
for creation of 
other corpora- 
tions, but can- 
not create any 
municipal cor- 
poration. 



Two houses 
shall join in 
grand commit- 
tee for elec- 
tions. 



Grand commit- 
tee, how con- 
stituted. 



Organization 
of. and method 
of conducting 
elections in. 



Quorum. 



Cities and 
towns not to 
guarantee in- 
debtedness of 
corporations, 
etc. 

Acts revived 
or amended, 
form of. 



No district 
without town 
powers to be 
established 
All laws to be 
by bill, and re- 
quisites of pas- 
sage. 



What local or 
special laws 
prohibited. 



Sec. 21. The grand committee shall consist of the mem- 
bers of the senate and house of representatives sitting to- 
gether, after having assembled pursuant to the vote of both 
houses. The method of its organization and of conducting 
elections therein shall be such as is or may prescribed by 
law, subject to the provisions of this constitution. A majority 
of the members elected to each house of the general assembly 
shall be necessary to constitute a quorum of the grand com- 
mittee. 

Sec. 22. The general assembly shall not authorize any 
city, toAvn, or incorporated district to guarantee the indebted- 
ness of any corporation, association, institution, or individual. 

Sec. 23. No act, or section thereof, shall be revived or 
amended by reference to its title only; but the act or section, 
as revived or amended, shall be enacted and set forth in full. 

Sec. 24. No district with general town powers without 
town representation shall be established. 

Sec. 25. No law can be passed, except by bill. Bills may 
originate in either house of the general assembly, but they 
may be amended, altered, or rejected in the other house. No 
law shall relate to more than one subject, and that shall be 
expressed in the title. Each law shall recite at length the 
provisions enacted and shall take effect upon the rising of the 
general assembly, unless an earlier date is provided in the 
act. No bill shall be considered for passage, unless it has 
first been referred to a committee and reported therefrom at 
least three days before the final adjournment of the general 
assembly. Every bill, before passage, must be read by sec- 
tions or by title on three different days and must have been 
read at length on its final passage, in each house of the gen- 
eral assembly. No bill shall become a law, unless, on its 
final passage, it receives in each house the vote of a majority 
of the members elected to that house. The supreme court 
shall have power to declare any act, or part of an act, uncon- 
stitutional and void not passed in compliance with the pro- 
visions of this section. 

Sec. 26. The general assembly shall not pass any local or 
special law for the following purposes : 

1, Changing the names of any person ; 

2, Adopting any x3erson ; 

3, Declaring any person of age ; 



89 



4, Granting divorces ; 

5, Granting- to any person or corporation any monopoly, 
exclusive privilege, immunity, or franchise, except as 
herein provided ; 

6, Granting to any person or corporation the right to lay 
down railroad tracks, except on land belonging to the 
State, unless under the exercise of the power of eminent 
domain ; 

7, Remitting fines, penalties, or forfeitures ; 

8, Providing for the bonding of cities, towns or other 
municipalities ; 

9, Regulating town or city affairs ; 

10, Regulating the election of town or city officers ; 

11, Regulating the fees or salary of any town or city 
officer ; 

12, Creating or prescribing the powers and duties of town 
and city officers ; 

13, Exempting property from taxation ; 

14, Creating any corporation or amending any charter. 
Sec. 27. No local or special bill shall be passed unless 

notice of the intention to apply therefor shall have been 
published in the locality where the matter or thing to be 
effected is situated, which notice shall be at least thirty 
days prior to the introduction into the general assembly of 
such bill and in the manner to be provided by law ; the 
evidence of such notice having been published shall be ex- 
hibited in the general assembly before such act shall be 
passed. 

Sec. 28. The general assembly may, by general law, pro- 
vide for the borrowing of money by bond or othermse 
by the towns and cities in the State, but the amount so 
borrowed shall never, at any time, exceed ten per centum 
upon the State valuation of the value of the property in any 
town or city. 

Sec. 29. All general laws or laws of a public nature must 
be uniform throughout the State. 

Sec. 30. The general assembly shall continue to exercise 
the powers they have heretofore exercised, unless prohibited 
in this constitution. 



Notice to be 
given of pen- 
dency of local 
or special bill. 



General as- 
sembly may 
authorize 
towns and 
cities to issue 
bonds not to 
exceed ten per 
centum on 
State valua- 
tion. 



General assem- 
bly to exercise 
its former pow- 
ers unless pro- 
hibited herein. 



90 



Article Y. 



Of the House of Bepy^esentatives. 



House of repre- 
sentatives,how 
constituted. 



May elect its 
officers. 

Precedence of 
Newport mem- 
bers at organi- 
zation. 



Section 1. The house of representatives shall consist of 
one hundred members, and shall be constituted on the basis 
of population, always allowing one representative for a frac- 
tion exceeding- one half the ratio. The State shall be divided 
into one hundred districts. The present ratio shall be one 
representative to every 3,847 inhabitants, and the general 
assembly shall, after any new census taken by the authority 
of the United States or of this State, re-apportion the repre- 
sentation by altering the ratio. The one hundred districts 
shall be divided into ten groups, of ten adjacent districts 
each, at such re-apportionment. In each group the names of 
the candidates to the house in the ten districts shall be placed 
on one ticket, and each voter Avithin the group shall vote for 
six representatives. The ten representatives receiving the 
largest number of votes in each group shall be declared 
elected. 

Sec. 2. The house of representatives shall have authority 
to elect its speaker, clerks, and other officers. The senior in 
age of the members elect from the city of Newport, present 
at the time, shall preside in the organization of the house. 



Article YI. 

Of the Senate. 



Senate, how 
constituted. 



Presiding ofll- 
cer, and his 
right to vote. 



Shall choose 
president of 
the senate, 
when. 



Secretary of 
state to be sec- 
retary of sen- 
ate. 



Section 1. The senate shall consist of the lieutenant- 
governor and of one senator from each town and city. 

Sec. 2. The lieutenant-governor shall preside in the senate 
and in grand committee, with the right to vote in case of 
an equal division, but not in elections. 

The senate shall choose a president to preside when the 
lieutenant-governor is absent, or when he shall refuse to act 
as president, or shall act as governor, or when the office of 
lieutenant-governor is vacant. 

Sec. 3. The secretary of state, by virtue of his office, shall 
be secretary of the senate, and secretary of the grand com- 
mittee unless otherwise provided by law. 



91 

Sec. 4. The senate shall have authority to elect its own May elect its 
clerks and such other officers as it may deem necessary. &c. 

Aeticle YII. 

Oj- the Executive Power. 

Section 1. The chief executive power of this State shall g^e! exTcitivl 

be vested in a governor, who, together with a lieutenant- officer. 
governor, shall be elected by the people. 

Sec. 2. The sfovernor shall take care that the laws be To execute the 

^ laws. 

faithfully executed. 

Sec. 3. He shall be captain-general and commander-in- Tobecom- 
chief of the military and naval forces of this State, except chief. 
when they shall be called into the service of the United 
States. 

Sec. 4. He shall have power to grant reprieves after ^rlnTtem^^^ 
conviction, except in cases of impeachment, for not longer rary reprieves. 
than thirty days after the beginning of the next session of 
the general assembly. 

Sec. 5. The governor, with the approval in writing of the Governor may 

. T pT p.. pi-1 grant pardons, 

judges oi the supreme court, or oi a majority oi their number, and how. 
after the examination by both of the record in each case, 
shall have power for good cause to grant pardons after con- 
viction. The governor shall submit a statement in writing 
to the general assembly in each case, setting forth the reasons 
why he has granted a pardon. 

Sec. 6. He may fill vacancies in office not otherwise pro- May mi vacan- 
vided for by this constitution or by law, until the same shall rariiy^°^^°" 
be filled by the general assembly or by the people. 

Sec. 7. Every bill passed by the legislature shall be pre- veto power. 
sented to the governor before it becomes a law, and if he 
approve it, he shall sign it. He may veto any bill by return- 
ing it with his objections to the house in which it originated. 
If passed over his veto by a vote of three-fifths of the mem- 
bers of each house, entered on the journal, it shall become a 
law. If a bill be kept ten days, Sundays excepted, by the 
governor without returning it, after it shall have been pre- 
sented to him. it shall become law without his approval ; but 
if the legislature adjourn during the said ten days, no such 
bill shall become a law mthout the approval of the governor. 



92 



May adjourn 

assembly, 

when. 



May convene 

assembly, 

when. 



Commissions, 
style of, and by 
whom signed. 



Lieutenant- 
governor shall 
act as gover- 
nor, when. 



President of 
the senate 
shall act as 
governor, 
when. 



No bill shall become a law after the final adjournment of the 
general assembly, unless approved by the governor within 
thirty days after such adjournment. The governor shall have 
power to veto any specific items in any bill appropriating 
money. He shall also have i^ower to veto severable parts of a 
bill that relate to different subjects. In such case he shall 
append to the bill at the time of signing it a statement of 
the items or subjects to which he objects, and his reasons 
therefor, and the items or subjects objected to shall be sepa- 
rately reconsidered and shall not become law, unless passed 
over his veto by a vote of three-fifths of each house entered 
on the journal. 

Sec 8. In case of disagreement between the two houses of 
the general assembly respecting the time or place of adjourn- 
ment, certified to him by either, he may adjourn them to 
such time and place as he shall think proper: Provided, 
that the time of adjournment shall not be extended beyond 
the day of the next stated session. 

Sec. 9. He may, on extraordinary occasions, convene the 
general assembly at any town or city in this State, at any 
time not provided for by law ; and in case of danger from 
the prevalence of epidemic or contagious disease in the place 
in which the general assembly is by law to meet, or to which 
it ma}^ have been adjourned, or for other urgent reasons, he 
may by proclamation convene said assembly at any other 
place within this State. 

Sec. 10. All commissions shall be in the name and by au- 
thority of the State of Ehode Island and Providence Plan- 
tations; shall be sealed with the State seal, signed by the 
governor, and attested by the secretary of State. 

Sec. 11. In case of the death, resignation, removal from 
the State, impeachment and conviction of the governor, or 
of vacancy in the office from any cause, the lieutenant- 
governor shall be the governor ; and in case of the inability 
of the governor to serve, or of his absence from the State, 
the lieutenant-governor shall be acting governor during such 
inability or absence. 

Sec. 12. If the offices of governor and lieutenant-governor 
be both vacant, by reason of death or otherwise, the president 
of the seuate shall be acting governor until such offices are 
filled by the general assembly ; and in case of the temporary 



93 



absence from the State of the g-overnor and lieutenant-gov- 
ernor, or of the inability of both of them to serve, the presi- 
dent of the senate shall be the acting governor during such 
inability or absence. Whenever the president of the senate 
shall act as governor or lieutenant-governor, he shall be en- 
titled only to his vote as senator on any question or election 
in the senate or grand committee. 

Sec. 13. The compensation of the governor and lieutenant- 
governor shall be established by law, and shall not be dimin- 
ished during the term for which they are elected. 

Sec. 14. There shall be a secretary of State, an attorney- 
general, and a general treasurer, whose powers and duties 
shall be such as may be prescribed by law. The general 
assembly shall provide by law for annual reports from each 
of said officers as to the business in his department, and the 
report of the attorney-general shall include the disposition 
of cases in which the State is interested. 



Compensation 
of thegrovernor 
and lieutenant- 
governor. 



Duties and 
powers of the 
other general 
officers. 



Article YIII. 



Of the Jiuhcial Power. 



Section 1. The judicial power of this State shall be vested 
in a court of common pleas, a superior court, a supreme 
court, and such inferior courts as the general assembly may 
from time to time ordain and establish. 

Sec. 2. The court of common pleas shall have original 
jurisdiction in all jury cases, whether civil or criminal. It 
shall have appellate jurisdiction, in manner to be provided 
by law, in all civil cases from inferior courts in which the 
debt or damages laid in the writ shall exceed three hundred 
dollars; of all crimes, offences, and misdemeanors brought 
before it by appeal, commitment, recognizance, indictment, 
or otherwise ; and of such cases from inferior courts as the 
general assembly may by law determine. The justices of 
this court shall instruct the jury in the law in all trials. 

Sec. 3. The superior court shall have original jurisdiction 
in all suits and proceedings in equity, petitions for mechan- 
ics liens, and other statutory proceedings following the course 
of equity, with power to make and enforce all orders and de- 
crees therein, and to issue all process therefor, according to the 



Judicial 
power, where 
vested. 



Jurisdiction of 
court of com- 
mon 



Jurisdiction of 
superior court. 



94 



Jurisdiction of 
supreme court. 



General assem- 
bly may confer 
additional 
jurisdiction. 



Judges, how 
appointed, &c. 



Vacancy, how 
filled. 



course of equity ; of petitions for new trials, divorce, separate 
maintenance, alimony, and custody of children. It shall 
have exclusive authority to issue writs of error, certiorari, 
mandamus, prohibition, and quo warranto ; and to entertain 
informations in the nature of a writ of quo warranto, and of 
writs of habeas corpus ; and may issue all other extraordinary 
writs and processes to courts of inferior jurisdiction, corpora- 
ations, societies, associations, copartnership, and individuals 
that may be necessary for the furtherance of justice and for 
the due administration of the laws ; with all incidental powers 
necessary to the proper discharge of its duties according to 
law. 

Sec. 4. The supreme court shall have jurisdiction in the 
review of all questions of law and of equity, upon appeal from 
the lower courts. 

Sec. 5. Each of these three courts shall have such addi- 
tional and appellate jurisdiction as may be conferred upon it 
by the general assembly. 

Sec. 6. The justices of the court of common pleas, of the 
superior court, and of the supreme court shall be appointed 
by the governor, from members of the bar learned in the law 
and distinguished for their high attainments and character, 
irrespective of party, but not more than a majority of any one 
of said courts shall be members of the same political party. 
Each justice shall hold his office during good behavior, until 
he reaches the age of seventy years, but any justice may be 
re-appointed by the governor from year to year, after reach- 
ing the age of seventy years. But a justice of any court 
shall be removed from office if, upon impeachment, he shall 
be found guilty of any official misdemeanor. 

Sec. 7. In case of vacancy by death, resignation, removal 
from the State or from office, refusal or inability to serve of 
any justice of the court of common pleas, superior court or 
supreme court, the governor shall appoint his successor. In 
case of impeachment or temporary absence or temporary in- 
ability, the governor may appoint a person to discharge the 
duties of the office during the vacancy caused thereby. He 
shall also be removed from office by the governor, assisted 
in his judgment therein by the ex-ojficio members of the su- 
preme and superior court at that time retired on pension, if 
any there be, for any gross misbehavior incompatible with 



95 



the dignity of his office, upon complaint made, stating- the 
cause for which such removal is deemed necessary. He shall 
be given an opportunity to be heard thereon, and to be re- 
presented by counsel if he so desire, and he shall be served 
with a copy of said complaint at least twenty days before 
such hearing. The governor shall state in writing his 
reasons for any removal made under this section. 

Sec. 8. The justices of said court shall receive compensa- 
tion for their services, and provision for their old age, by 
way of pension after retirement, as the general assembly may 
by law determine, which, however, shall not be diminished 
during their continuance in office. 

Sec. 9. The cities and towns of the State may elect such 
justices of the peace or wardens resident therein as they may 
deem proper, and the towns of New Shoreham and James- 
town may continue to elect their wardens as heretofore, 
whose jurisdiction shall be regulated by law, and who shall 
be commissioned by the governor. 

Sec. 10. The justices of the supreme court shall give their 
written opinion upon any question of law whenever requested 
by the governor or by either house of the general assembly : 
Provided, that they may decline to answer such questions as 
in their opinion they cannot properly decide, and no such 
opinion shall be deemed to be a judicial determination. 

Sec. 11. The judges of the several courts shall, in all jury 
trials before them, instruct the jury in. the law. 



Compensation 
of judges. 



Justices of the 
peace. 

Wardens for 
New Shoreham 
and James- 
town. 



Duties of jus- 
tices of su- 
preme court. 



Same subject. 



Article IX. 



Of Elections. 



Section 1. The governor, lieutenant-governor, senators. General ofs- 
representatives, secretary of State, attorney general, general bers of general 

, T , T i i- ' • ii 1 assembly, when 

treasurer and senators ana representatives m the general elected, and 
assembly shall be elected by ballot in the manner now or office. 
hereafter required by law, at the town, city, ward, or district 
meetings, to be holden on the Wednesday next after the first 
Monday in December in each year, and shall severally hold 
their offices for one year from the first Tuesday of January 
next succeeding their election, and until theh' successors are 
elected and duly qualified to fill their places. 



96 



Votes foi' gen- 
eral officers, 
how taken and 
to be treated. 



Power of gen- 
eral assembly 
over list of 
voters, &c. 



Lieutenant- 
governor elect 
shall be quali- 
fied as gover- 
nor, when. 



General offi- 
cers to be 
elected by gen- 
eral assembly 
in grand com- 
mittee, when. 



When offices of 
governor and 
lieutenant-gov- 
ernor be both 
vacant, how to 
be filled. 

Duty of acting 
governor in 
such an event. 



Sec. 2. The names of the persons voted for as governor, 
lieutenant-governor, secretary of State, attorney general, and 
general treasurer shall be placed upon one ticket ; and all 
votes for these officers shall, in open town or ward meetings, 
be sealed up by the moderators and toAvn clerks and by the 
wardens and ward clerks, who shall certify the same and 
deliver or send them to the secretary of State ; Avhose duty 
it shall be securely to keep and deliver the same to the grand 
committee after the organization of the two houses at the 
next session. 

Sec. 3. The general assembly shall have power to pass 
general laws concerning a list or register of all persons 
qualified to vote for general officers, senators, and represen- 
tatives, the counting of the ballots, the announcement of the 
result, the giving of certificates to the officers elected and 
the ordering of new elections. 

Sec. 4. When the governor elect shall die, remove from 
the State, refuse to serve, become insane, or be otherwise 
incapacitated, the lieutenant-governor elect shall be qualified 
as governor at the beginning of the term for which he was 
elected. When both the governor and lieutenant-governor 
elect, or either the lieutenant-governor, secretary of State, 
attorney-general, or general treasurer elect are so incapaci- 
tated, or when there has been a failure to elect any one or 
more of the officers mentioned in this section, the general 
assembly shall upon its organization meet in grand commit- 
tee and elect some person or persons to fill the office or offi- 
ces, as the case may be, for which such incapacity exists, or 
as to which such failure to elect occurred. When the gen- 
eral assembly shall elect any of said officers because of the 
failure of any person to receive a plurality of the votes cast, 
the election in each case shall be made from the persons 
w^ho received the same and largest number of votes. 

Sec. 5. If the offices of governor and lieutenant-governor 
be both vacant, by reason of death or otherwise, they shall 
be filled by the genera] assembly in grand committee, aad 
the acting governor shall, if the general assembly is not then 
in session, call a special session thereof for that purpose 
within twenty days after both of said offices become vacant, 
if a stated session is not sooner to occur. 

Sec. 6. In case of a vacancy in the office of secretary of 



97 



State, attorney-general, or general treasurer, from any cause, 
the general assembly in grand committee shall elect some 
person to fill the same : Provided, that if such vacancy occurs 
when the general assembly is not in session the governor 
shall appoint some person to fill such vacancy until a succes- 
sor elected by the general assembly is qualified to act. 

Sec. 7. When a senator or representative elect shall die, 
remove from the State, refuse to serve, become insane, or be 
otherwise incapacitated, or when at an election for any sen- 
ator or representative no person shall receive a plurality of 
the votes cast, a new election shall be held. A vacancy in 
the senate or house of representatives shall be filled at a new 
election. The general assembly shall provide by general 
law for the holding of such elections at such times as to in- 
sure that each town and city shall be fully represented in 
the general assembly during the whole of every session 
thereof, so far as is practicable. Every person elected in 
accordance with this section shall hold his office for the re- 
mainder of the term or for the full term, as the case may be, 
of the office which he is elected to fill, and until his successor 
is elected and qualified. 

Sec. 8. In elections by the general assembly in grand 
committee the person receiving a majority of the votes shall 
be elected. Every person elected by the general assembly 
to fill a vacancy, or pursuant to section 2 of this article, shall 
hold his office for the remainder of the term or for the full 
term, as the case may be, and until his successor is elected 
and qualified. 

Sec. 9. Elections h^ the people shall be conducted in the 
manner now iDrescribed by law, until other^\dse provided by 
the general assembly, subject to the provisions of this con- 
stitution. 

Sec. 10. In all elections by the people the person receiving 
a plurality of the votes cast shall be elected. 

Sec. 11. The general assembly shall provide by law for 
the trial and determination of all contested elections in the 
courts. 



Vacancy in 
offices of secre- 
tary of State, 
attorney-gen- 
eral, or general 
treasurer, how 
filled. 



Vacancy in 
general assem- 
bly, how filled. 



In elections by 
general assem- 
bly, majority 
to elect. 

Tenure of 
office of per- 
sons elected . 
by. 



Elections by 
people, how to 
be conducted. 



In elections by 
the people 
plurality to 
elect. 

Contested 
elections. 



98 



Article X. 



Of Qualifications for Ojjice. 



Qualified 
electors only 
eligible. 



Conviction of 
bribery a dis- 
qualification. 



General offi- 
cers, how en- 
gaged. 



Members of as- 
sembly, the 
judges, and all 
ot-her officers, 
how engaged. 



By whom the 
general officers 
and members 
of assembly 
shall be en- 
gaged. 



General offi- 
cers and mem- 
bers of assem- 
bly not to hold 
certain offices. 



All persons 
elected to pub- 
lic office, to 
make return of 
all money, &c., 
spent, &c. 



Section 1. No person shall be elected by the people to 
any civil office (except the office of school committee) unless 
he is a qualified elector for such office. 

Sec. 2. Every person shall be disqualified from hold- 
ing any office to which he may have been elected, upon con- 
viction of having offered, or procured any other .person to 
offer, any bribe to secure his election or the election of any 
other person. 

Sec. 3. All general officers shall take the following en- 
gagement before they act in their respective offices, to wit : 
You having been by the free vote of the electors of 

this State of Ehode Island and Providence Plantations elec- 
ted unto the place of do solemnly swear (or affirm) to 
be true and faithful unto this State, and to support the con- 
stitution of the United States and of this State ; that you 
will faithfully and impartially discharge all the duties of your 
aforesaid office to the best of your abilities, according to 
law : So help you God. Or, this affirmation you make and 
give upon the peril of the penalty of perjury. 

Sec. 4. The members of the general assembly, the judges 
of all the courts, and all other officers, both civil and mili- 
tary, shall be bound by oath or affirmation to support the 
constitution of the United States and of this State. 

Sec. 5. The governor, lieutenant-governor, senators, and 
representatives shall be engaged by the secretary of State, 
or by a justice of the supreme court. The secretary of 
State, attorney-general, and general treasurer shall be en- 
gaged by the governor, or by a justice of the supreme court. 

Sec. 6. No person shall act as a general officer or as a 
member of the general assembly, who, at the time of taking 
or while occupying such office, shall hold any office made by 
law incompatible therewith ; nor shall any person be elected 
to any office within the gift of the general assembly while a 
member thereof nor during the term he was elected to fill. 

Sec. 7. To the end that the people may be protected in 
their political rights and because publicity tends to preserve 
those rights, by the prevention of fraud, every person elected 



99 



to public office shall make a true and correct statement under 
oath or affirmation according to the best 'of his knowledge, 
information, and belief, specifying what is stated of his own 
knowledge and what is stated upon information and belief, 
within thirty days after his election, to the secretary of State 
for publication thereof, of all money or other consideration 
paid, offered, promised, given, or delivered or to be paid, 
offered, promised, given, or delivered, by or for him, directly 
or indirectly, in connection with his election. 

Sec. 8. . A like statement shall be made within thirty days 
after the adjournment of the general assembly to the secre- 
tary of State, for publication, by every one, whether a person, 
persons, association, club, company, corporation, copartner- 
ship, committee, or however, otherwise, handling or controll- 
ing campaign funds or money or other consideration for 
election purpose during all elections in the preceding year, 
of all such money or other consideration received and paid, 
or to be received or paid for such purposes, and the details 
or items of such statements shall be audited and verified as 
the general assembly shall by law provide. 

Sec. 9. Every one, whether a person, persons, association, 
club, company, corporation, copartnership, committee, or 
however otherwise petitioning or causing the general as- 
sembly to be petitioned for the passage of any measure, or 
appearing, or causing any one to appear, before any com- 
mittee of either house of the general assembly, in support of, 
or in opposition to any measure pending before the general 
assembly for money or other consideration, shall make a 
like statement to the secretary of State for publication, with- 
in thirty days after the adjournment of each session of the 
general assembly, of all money or other consideration paid, 
offered, promised, given, delivered or received, or to be paid, 
offered, promised, given, delivered or received, whether 
directly or indirectly, for services rendered or to be rendered 
in connection therewith. 

The general assembly shall carry the provisions of sections 
7, 8, and 9 into effect by appropriate legislation that shall 
provide adequate remedies for punishing all violations there- 
of and effectual means for the enforcement thereof. 



All persons 
handling, &c., 
money. &c., 
for election or 
campaign pur- 
poses, to make 
retm-n thereof. 



All persons 
petitioning- the 
general assem- 
bly, to make 
return of 
money. &c., 
paid, &c. 



UfTC 



[ 



100 



Akticle XI. 



Who liable to 
impeachment. 



Effect of con- 
viction. 



Impeach- 
ments, how to 
be ordered. 



Impeach- 
ments, how to 
be tried. 



Of l7)ipeachments. 

Section 1. The governor and ail executive and judicial 
officers shall be liable to impeachment for treason, bribery, 
or other crimes and misdemeanors, or for misconduct in of- 
fice ; but judgment in such cases shall not extend further 
than to removal from office. The person impeached, whether 
convicted or acquitted, shall, nevertheless, be liable to prose- 
cution and punishment otherwise, according to law. 

Sec. 2. The house of representatives shall have the sole 
power of impeachment. A vote of two-thirds of all the mem- 
bers elected shall be required for the impeachment of the 
governor, and for the impeachment of any other officer a vote 
of a majority of all the members elected shall be required. 
No judicial officer, nor officer having custody of public funds, 
shall exercise his office after impeachment, until he has been 
acquitted. 

Sec. 3. The senate shall try all impeachments, and when 
sitting for that purpose the members thereof shall be under 
oath or affirmation to give the accused an impartial trial. No 
person shall be convicted except by vote of two-thirds of the 
members elected. When the governor is impeached the 
chief or presiding justice of the supreme court shall preside, 
with a casting vote in all preliminary questions. 



Article XII. 



Of City Charters. 



How a city 
may revise its 
charter, or a 
town may be- 
come a city. 



Section 1. The electors of any city desirous of revising 
its charter, or of any town desirous of becoming a city, may 
revise its charter or frame its charter, all such charters to be 
subject to this constitution. For this purjDose they may 
cause a convention to be called, to be composed of fifteen 
persons who shall be electors at least five years in such city 
or town and who shall be elected at an election to be held 
for such purpose in such city or town. It shall be the duty 
of the members of such convention to meet, to prepare and 
to propose the revised charter for such city, or a charter for 



101 

such town desirous of becoming a city. Said charter shall be 
signed in duplicate by the members of such convention or a 
majority of them, and they shall return one copy thereof to 
the mayor of said city or to the president of the town council 
of said town and the other to the recorder of deeds of said 
city or town. After publication thereof, as said city or town 
council shall order and within not less than thirty days nor 
more than sixty days thereafter, such charter shall be sub- 
mitted to the vote of the electors of said city or town at a 
general or special election. If ratified by a majority of the 
electors voting thereon, it shall be submitted to the general 
assembly for its approval or rejection as a whole ; and if ap- 
proved by the general assembly, it shall become the charter 
of such city, or town desirous of becoming a city, shall be- 
come the organic law thereof, and shall supersede any exist- 
ing charter or law inconsistent therewith. Copies thereof 
certified by the mayor of said city, setting forth the submis- 
sion of said charter to the electors and its ratification by 
them, shall be made in duplicate and deposited, one in the 
office of the secretary of State, the other in the archives of 
such city, after being recorded in the office of the recorder of 
deeds therein. All courts shall take judicial knowledge 
thereof. 

Article XIII. 

Aiiiendment of City Charters. 

Section 1. Any city charter ratified as aforesaid may be city charters, 
amended by propositions therefor submitted to and passed 
by the city council of said city, and submitted to the electors 
thereof at any election held not less than thirty days nor 
more than sixty days thereafter, and ratified by the vote of a 
majority of the electors voting thereon at such election, and 
approved by the general assembly as herein above provided 
for the approval of city charters. 

In submitting any such charter or any amendment thereto, 
any alternative article may be presented for the choice of the 
electors, and may be voted for separately without prejudice 
to any other articles. 



102 



Article XIY. 



Town and city 
boundaries, 
how changed. 



Town ordi- 
nances. 



Division of Toiuns. 

Section 1. Any town may be divided into more than one 
town, or into a city and town, or towns, by causing a board 
of ten persons who shall have been at least five years electors 
in said town to be elected by the electors of said town at any 
election held for that purpose. It shall be the duty of such 
board to meet, to hold public meetings, to hear the parties 
interested, and to report a plan to carry out such division to 
the town council of such town. After publication of such 
report, as said town council may determine, and after thirty 
days and within sixty days thereafter, it shall be submitted 
to the electors of said town at an election held for that pur- 
pose. If ratified by a vote of a majority of the electors 
voting thereon, it shall be submitted to the general assembly 
for its approval or rejection as a whole, and if approved hj 
the general assembly, it shall become a law. 

Article XY. 

Change of Boundaries of Towns and Cities. 

Section 1. The general assembly shall have power to 
change the boundary lines of toAvns and cities, provided a 
majority of the electors living in such territory, as well as 
of the town or city to which it is to be annexed voting there- 
on, shall vote therefor, in such manner as the general as- 
sembly may determine. 

Article XYI. 

Of Tovni or City Regulations. 

Section 1. Any town or city may make and enforce with- 
in its own limits all such ordinances, sanitary, police, and 
other reorulations as are not in conflict with the general laws. 



Corporations 
under control 
of general as- 
sembly. 



Article XYII. 

On Corporations. 

Section 1. The general assembly shall enact, amend, or 
repeal, as may be necessary from time to time, general laws 
for the creation, regulation and control of corporations. But 
no corporation shall be created under any special act. 



103 



Sec. 2. Stockholders in corporations created in this State 
may vote one vote for each share for each person to be 
elected to office in such corporation, by person or by proxy, 
or they may cnmualte all their votes on one candidate or 
distribute them among as many candidates as they see fit, as 
any such corporation may determine. 

Sec. 3. No corporation shall increase its capital stock, ex- 
cept with the consent of a majority of the stockholders in 
value at a meeting for such purpose, held after such notice 
thereof as the general assembly by general law shall deter- 
mine. 

Sec. 4. No corporation shall issue preferred stock with- 
out the consent of two -thirds of the stockholders in value. 

Sec. 5. The charters of all corporations hereafter created 
in this State may be altered or repealed by amendment to 
the constitution of this State or by general law, and no con- 
tract shall be created or extended under any charter or act 
of incorporation or under any amendment of either that shall 
not be subject to alteration or repeal by the general assem- 
bly. 

Sec. 6. Whenever hereafter any law^ shall be passed 
affecting any corporation existing at the time of the adoption 
of this constitution, or hereafter created, no such corporation 
shall be entitled to the benefits thereof, except on condition 
that such corporation shall thereafter hold its charter subject 
to the provisions of this constitution ; in which case, it shall 
file an acceptance of such condition with the secretary of 
State in such manner as the general assembly shall by law" 
determine. 

Sec. 7. No corporation can engage in any business other 
than that expressly authorized by its charter or the law under 
which it is formed. 

Sec. 8. Every corporation organized or doing business in 
this State, other than religious, educational, or benevolent 
corporations, and whether domestic corporations or foreign 
corporations, shall have an office in this State for the tran- 
saction of business and an officer or agent therein upon 
whom service of process may be made, and shall make annual 
return to the general treasurer of its business in this State. 
The general assembly shall have power to enforce the pro- 
visions of this section by general laws. 



Voting by 
stockholders. 



Increase of 
capital stock. 



Preferred 
stock, how 
issued. 

Charters sub- 
ject to amend- 
ment or repeal 
by general as- 
sembly. 



Corporations 
to file accept- 
ance of provis- 
ions of law. 



Corporation 
can transact 
only the busi- 
ness author- 
ized by its 
charter. 
Corporations 
to have an 
office and 
agent in this 
State. 



104 



How corpora- 
tion can issue 
stock or bonds. 



Eegulation of 
transportation 
corporations. 



Consent of 
abutting own- 
ers necessary 
to construction 
of street rail- 
way. 

Consent of 
electors neces- 
sary to corpo- 
ration. 

Acquiring 
right of way 
in public high- 
way or ex- 
clusive privi- 
lege. 



Liability of 
stockholders 
for debts of 
corporation. 



Liability of 
directors. 



Issue of ficti- 
tious capital 
stock pro- 
hibited. 



Sec. 9. No corporation may issue stock or bonds, except 
for money, labor done, or property at its actual market value, 
actually received, and after the directors thereof shall have 
filed their certificate to that effect under oath with the secre- 
tary of State. 

Sec. 10. Kailroads and steamboats are public highways 
and common carriers, and are therefore subject to reasonable 
legislative control. The general assembly shall have power 
to pass laws to correct abuses and prevent unjust discrimina- 
tion and extortion, and to establish reasonable maximum 
rates of fare and freight. 

Sec. 11. No street railway shall be hereafter constructed 
in any town or city without the consent in writing of a 
majority in value of the abutting property owners, nor with- 
out the consent of the local town or city council. 

Sec. 12. No corporation shall acquire any right in any 
public highway in any town or city, without the consent of 
a majority of the electors voting thereon in such town or 
city, at an election to be held for that purpose, and upon 
such terms and conditions as may be determined by the 
council of such town or city granting such privilege. No 
exclusive privilege shall be granted to any corporation unless 
confirmed by the vote of a majority of the electors in the 
town or city in which it is proposed such exclusive privilege 
shall be granted. 

Sec. 13. Stockholders in corporations created in this State 
shall not be liable for the debts of the corporation, except to 
the extent of unpaid stock therein owned by them. 

Sec. 14. Directors of corporations created in this State 
shall be jointly and severally liable to creditors and stock- 
holders thereof for all moneys embezzled or misappro- 
priated by the officers or employees thereof during their 
term of office, and for any false certificate made by them. 

Sec. 15. No railroad or other quasi-public corporation 
shall issue any stock or bonds, except for money, labor, or 
property actually received and applied to the purposes for 
which such corporation was created, and all stock, dividends, 
and other fictitious increase of the capital stock or indebted- 
ness of any such corporation shall be void. The capital 
stock of such corporations shall not be increased for any 



105 

purpose, except after public notice for sixty days, in such 
manner as may be provided by law. 

Sec. 16. No street railway, gas, water, steam heating, o?towineces^ 
telephone, or electric light company, association, or any one r|[il^&?^can 
carrying on such business within a city or town shall be per- ^^j}^^^ ^^ 
mitted or authorized to construct its tracks, lay its pipes or 
mains, or erect its poles, posts, or other apparatus along, 
over, under, or across the streets, highways, alleys or public 
grounds of a city or town, without the consent of the city or 
town council of such city or town being first obtained. 

Sec. 17. No city or town shall be authorized or permitted £wn To ?rant 
to grant any franchise or privilege, or make any contract in more^han°^ 
reference thereto, for a term exceeding twenty years. Before ^^°^^ ^^^^^' 
granting such franchise or privilege for a term of years, such 
municipality shall first, after due advertisement, receive bids 
therefor publicly, and award the same to the highest re- 
sponsible bidder ; but it shall have the right to reject any or 
all bids. This section shall not apply to a trunk railway. 

Sec. 18. No railroad, steamboat, or other common carrier, pJb?i? officer? 
, under heavy penalty to be fixed by the general assembly, forbidden. 
shall give a free pass or passes, or shall, at reduced rates not 
common to the public, sell tickets or transportation to any 
State, district, city, town, or county officer, or member of the 
general assembly, or judge; and any State, district, city, 
town, or county officer, or member of the general assembly, 
or judge who shall accept or use a free pass or passes, or 
shall receive or use tickets or transportation at reduced rates 
not common to the public shall forfeit his office. It shall 
be the duty of the general assembly to enact laws to enforce 
the provisions of this section. 

Article XVIII. 

Of Education. 

Section 1. It shall be the duty of the general assembly ^^^y of seri- 
to promote public schools and to adopt all means which it to promote 

T T J J i 1 1,1 public schools 

may deem necessary and proper to secure to the people the and education. 
advantages and opportunities of education. 

Sec. 2. The money which now is or which may hereafter Permanent 

be appropriated by law for the establishment of a permanent Fund.° 



106 



Donations for 
support of pub- 
lic schools. 



Said fund not 
to be diverted 
from said uses. 



Duty of gen- 
eral assembly 
under this 
article. 



fund for the support of public schools shall be securely in- 
vested and remain a perpetual fund for that purpose. 

Sec. 3. All donations for the support of public schools or 
for other purposes of education, which may be received by 
the general assembly, shall be applied according to the 
terms prescribed by the donors. 

Sec. 4. The general assembly shall not divert said money 
or fund from the aforesaid uses, nor borrow, appropriate, or 
use the same, or any part thereof, for any other purpose, 
under any pretence whatsoever. 

Sec. 5. The general assembly shall make all necessary 
provisions by law for carrying this article into effect. 



Article XIX. 



Amendments 
to constitu- 
tion, how pro- 
posed and 
adopted. 



Of Ameiuhnents. 

Section 1. Amendments to this constitution may be pro- 
posed in either house of the general assembly, and passed in 
both houses by a majority of all the members of each house, 
the ayes and nays being recorded in the journal. Such pro- 
posed amendments shall then be submitted to the electors at 
the next general election, and if approved by a majority of 
the electors voting thereon shall be declared by the governor 
to have become a part of this constitution. 



Article XX. 



How the gen- 
eral assembly 
may call a con- 
stitutional 
convention. 



Of Constitutional Conventions. 

Section 1. Whenever a majority of the members of both 
houses vote to call a convention to revise the constitution, the 
question shall be submitted to the electors at the next gen- 
eral election, and if approved by a majority of the electors 
voting thereon, the general assembly shall provide for the 
calling of a convention. Such convention shall consist of 
delegates equal in number to and elected in the same man- 
ner as the members of the general assembly, to be elected 
at an election to be called for that purpose by the general 
assembly. 

Sec. 2. Whenever per centum of the people shall petition 
the general assembly in any one year to call a constitutional 



107 

convention, the general assembly shall submit to the elec- Howthepeo- 
tors at the next general election the question whether a con- constitutional 
stitutional convention shall be called, and if a majority of the ^^'^^^^ ^°° 
electors voting thereon shall vote in the affirmative, the gen- 
eral assembly shall forthwith make provision to carry into 
effect the will of the people thus made manifest, by provid- 
ing for the election of delegates to such constitutional con- 
vention equal in number to, and elected in the same manner 
as, the members of the general assembly, to be elected at an 
election to be called for that purpose by the general assembly. 

Sec. 3. The delegates so elected, under either section Powers and 
one or two hereof, shall meet at the State capitol within convention. 
four weeks next ensuing after their election, and shall 
continue in session until their business is completed. No 
new constitution nor amendment to the constitution shall 
be submitted for approval to the electors unless by the 
assent of a majority of all the delegates elected to the 
convention, the yeas and nays to be entered on their jour- 
nal. The convention shall determine the rales of its own 
proceedings, choose its own officers and fix their compen- 
sation and the compensation of its own members, and 
shall be the judge of the election, returns, and qualifica- 
tions of its own members. In case of any vacancy in its 
membership, it shall be filled by the town or district by a 
new election. The new constitution or amendments adopted 
by such convention shall be submitted to the vote of the 
electors of the State including those who will become elec- 
tors thereunder, at the time and in the manner provided 
by such convention, either as a whole, or section by section 
or both, as such convention may provide, at an election that 
shall be held not less than six weeks after the adjournment 
of the convention. Upon the approval by a majority of the 
electors voting thereon of such new constitution or amend- 
ments, it or they shall go into effect thirty days after said 
approval, and proclamation thereof shall be made by the 
governor. 

Aeticle XXI. 

Of the Adoption of this Constitution. 
Section 1. The governor, lieutenant-governor, secretary oeneraiofflcers 
of State, attorney-general, general treasurer, and senators of as?e^mbiy at 
and representatives in the general assembly in office when adoptkm^of'' ^ 



108 



this constitu- 
tion to hold 
office until first 
Tuesday in 
January, 1900. 



First election 
under this con- 
stitution, when 
to be held. 



Eegistration. 



Qualifications 
of electors. 



Supreme court 
how consti- 
tuted. 



Jurisdiction 
and powers of 
courts not to 
be affected by 
adoption of 
this constitu- 
tion. 

Pending litiga- 
tion not to be 
affected. 



Persons hold- 
ing certain 
offices not to 



tliis constitution goes into effect shall continue to hold their 
offices with the powers and duties, and subject to the limita- 
tions, prescribed therein for like officers, until the first 
Tuesday in January, A. D. , and until their successors 

are elected and qualified. Vacancies in their number from 
any cause shall be filled in the manner Avhich is prescribed 
by law at the time of their occurrence. 

Sec. 2. The first election of officers named in the next 
preceding section under this constitution shall be held upon 
the Tuesday after the first Monday in November, A. D. , 

by the electors qualified under this constitution. The town, 
ward, and district meetings therefor shall be warned and 
conducted, and the result thereof determined, authenticated, 
and declared in the manner at that time prescribed by law, 
and the persons then elected shall hold their offices from the 
said first Tuesday in January, A. D. , until the first 

Tuesday in January, A. D. , and thereafter until their 

successors are elected and qualified. 

Sec. 3. The general assembly shall provide by law, sub- 
ject to the provisions of this constitution, for the registration 
necessary to qualify persons to vote at said first election, 
which registration shall close on the 

. For all elections by the people held before said first 
Tuesday after the first Monday in , the 

qualifications of the electors shall be such as were required 
by the constitution and laws existing at the time of the 
adoption of this constitution. 

Sec. 4. The three senior justices of the supreme court in 
office at the time of the adoption of this constitution shall 
constitute the supreme court provided for therein until their 
offices are vacated in accordance with the provisions thereof. 
All courts, as constituted and organized by law at the time 
of the adoption of this constitution shall continue with their 
respective jurisdictions and powers until the new justices 
shall be appointed by the governor. 

Sec. 5. All legal proceedings now pending shall be heard, 
decided, and disposed of as nearly as may be in the various 
courts constituted hereunder similar to or standing for the 
courts in which such legal proceedings are now pending. 

Sec. 6. Except as herein otherwise provided, all persons 
who shall hold any office under the constitution or laws 



109 



existing at the time of the adoption of this constitution shall 
continue to hold their offices in the same manner and with 
the same effect as if it had not been adopted. 

Sec. 7. All statutes and resolutions, public and private, not 
repugnant to this constitution shall continue in force until 
they expire by their own limitation or are repealed by the 
general assembly. All charters, contracts, judgments, actions 
and rights of action shall be as valid as if this constitution 
had not been made, and all debts contracted and- engage- 
ments entered into on behalf of the State before this con- 
stitution takes effect shall be as valid against the State as if 
this constitution had not been adopted. 

Sec. 8. All officers who by the provisions of this constitu- 
tion are continued in office beyond the stated time for which 
they were elected or appointed shall receive a pro rata com- 
pensation for their increased term of service, based upon the 
compensation provided for in this constitution or by law. 

Sec. 9. This constitution shall take effect upon the proc- 
lamation by the governor that it has been duly approved 
by the people. 

Sec. 10. No provision of the constitution which has been 
hereby superseded shall continue in force as a part of the 
constitutional law of the State except so far as it is re-affirmed 
in this constitution. 

Sec. 11. For the purpose of submission to the electors, 
said proposition shall be designated " The New Constitution 
OF the State of Rhode Island and Providence Plantations." 

Sec. 12. The said new constitution aild any future amend- 
ments or new constitution shall be submitted to the electors 
who will become the electors thereunder for their approval 
or rejection, at meetings of the electors to be held on the 

, in the words following, to wit : — "Shall 'The 
new constitution (or amendments to the constitution, as the 
case may be) of the State of Rhode Island and Providence 
Plantations ' be adopted? " The voting places in the several 
cities and towns shall be kept open during the hours required 
by law for voting therein for general officers of the State. 

Sec. 13. The secretary of State shall cause this new con- 
stitution to be published in the manner provided by law for 
publishing the public laws of the State, prior to the day of the 
said meetings of the said electors ; and the said proposition 



be affected by 
the adoption of 
this constitu- 
tion. 



Present stat- 
utes, etc., to re- 
main in force, 
until when. 



Charters, con- 
tracts, judg- 
ments, etc., 
not affected. 

Former debts, 
etc., adopted. 



Compensation 
of officers con- 
tinued in office. 



Constitution 
to take effect 
when. 



Provisions of 
old constitu- 
tion to con- 
tinue in force, 
to what extent. 



Proposition, 
how desig- 
nated. 



Proposed new 
constitution to 
be voted on. 



Publication of 
proposition. 



110 



Town, ward, 
and district 
meetings, how 
warned. 



Counting and 
certifying of 
ballots cast. 



Official count 
andproclama 
tion of result. 



shall be inserted by the town and city clerks in the warrants 
or notices by them to be issued previous to said meeting's of 
the electors for the purpose of warning the town, ward, or 
district meetings ; and said proposition shall be read by the 
town, ward, and district clerks to the electors in the town, 
ward, and district meetings to be held as aforesaid. 

Sec. 14. The town, ward, and district meetings to be held 
as aforesaid shall be warned, and the^ list of voters shall be 
canvassed and made up, and the said town, ward, and district 
meetings shall be conducted in the same manner as now pro- 
vided by law for the town, ward, and district meetings for 
the election of general officers of the State. 

Sec. 15. At the close of the polls on said day of said meet- 
ings of the electors, the moderator and town clerk, or the 
warden and ward clerk, or the moderator and district clerk 
shall, in open town, ward, or district meeting, count said bal- 
lots and seal up the same, and shall certify that the ballots 
by them sealed up are the ballots given in at said meetings 
of the electors, the number of such ballots, and that the num- 
ber of ballots on said proposition does not exceed the number 
of electors voting at said meetings, what number of persons 
voted and how^ many ballots there are, and shall deliver or 
send such ballots, so sealed up and certified, to the secre- 
tary of State Avithin five days after said day of , 
A. D. 18 . 

Sec. 16. The governor, secretary of State, and attorney- 
general shall count said ballots on or before the day of 
, A. D. 18 . And the governor shall announce 
the result by proclamation, on or before the day of 

, A. D. 18 , and if said new constitution shall have been 
approved by a majority of the electors of the State present 
and voting thereon in said town, ward, and district meetings, 
the same shall be declared to be " The Constitution of the 
State of Ehode Island and Providence Plantations." 



ANALYTICAL INDEX. 



PAGE. 

Advisory Opinion, 14 K. I. 654. Effect of 3-4-23 

erred in maintaiiiing any new constitution would be such in 

name only 23 

ignored difference between right reserved imder Art. I, Sec. 1, 

and power conferred under Art. XIII 24 

under, no constutional convention can be called 26 

not a judicial decision 26 

difference between an, and an actual decision 26 

twice decided by supreme court of Rhode Island not to be 

judicial decision 27 

not to govern, authorities cited 28 

of State court reversed by judicial m supreme court of United 

States 28 

never claimed to be res judicata 28 

never claimed to make act of general assembly unconstitu- 
tional if contrary to it 28 

necessity for new 29 

failed to give effect to whole of constitution 30 

failed to recognize construction put by general assembly on 

Art. I, Sec. 1 30 

held that express power given to one party to do one thing m 
one way is an implied limitation upon the expressly stated 
right of another party to do another thmg m another way. 31 

construction by, of Art. I, Sec. 1, and Art. XIII 31-32 

not to be deemed a judicial determmation 95 

Amendment, power of constitution under Art. XIII 4 

express power of way one branch of government can mitiate, 
to constitution, is not implied negation of express power 
of people to make and alter their constitution of govern- 
ment mider Art. I, sec. 1 5 

revised constitution proposed that any, to constitution pro- 
posed by general assembly should pass, if approved by 

majority of electors 10 

revised constitution proposed limitation of power of, of con- 
stitution, by constitutional convention 10, 17 

an, under Art. XIII should be submitted to electors 29 

of constitution is not framing a new constitution, illustration. 30 



112 



PAGE. 

Amendment, how, should be made •. 106 

Ames, Rhode Island's greatest judge 21 

his opmion m Taylor v. Place, 4 R. I. 324, to be studied 21 

Article I, Section 1, of constitution of Rhode Island 1 

is not limited by Art. XIII 4, 5 

relation of, to Art. XIII 4-5 

states a power without limitations 5 

power of people under, may be exercised by a majority 5, 15 

difference between, and Art. XIII reversed in revised constitu- 
tion 10 

difference between, and Art. XIII is of very substance 24 

construction to be favored that will give effect to both, and 

Art. XIII 30 

legislative construction of 30 

expressly stated right of people mider, held by advisory opinion 
to be impliedly limited by grant to general assembly of 

power to propose amendments under Art. XIII 30, 31 

difference between, and Art. XIII 31 

construction of, by advisory opmion 31, 32 

should prevail 75 

Article IX of Constitution of Bhode Island wrong 44 

Article XIII of Constitution of Bhode Island does not limit Art. I, 

Sec. 1 3-5 

not exclusive of Art. I, Sec. 1 4 

relates only to amendments proposed by general assembly 3-4-9 

is extraneous and additional to Art. I, Sec. 1 4 

states limitations on powers therein granted 5-17 

excused rather than defended 9 

difference between, and Art. I, Sec. 1, reversed m revised con- 
stitution 10 

makes approach to limitation on powers reserved m Art. I, 

Sec. 10, but is distinguishable 16 

constitution cannot be made what it should be by amendments 

under 21 

powers conferred under, distinguished from rights reserved 

under Art. I, Sec. 1 24 

relates to different thing from Art. I, Sec 1 29 

that, is exclusive of Art. I, Sec. 1, would have astonished 

frame rs of constitution 30 

construction to be favored that will give effect to both, and 

Art. I, Sec. 1 30 

by a construction, quasi judicial only, an implied restriction is 

claimed on power to call a constitutional convention 30 

grant of power under, to general assembly to propose amend- 
ments to constitution, held by advisory opinion, to be im- 
plied limitation on expressly stated right of people in Art, 

I, Sec. 1 30 



113 



Article XIII of Constitution, etc., coiitiiiued. 

expressly mentioned way in which general assembly, under, 
can propose amendments, is exclusion of any other way 

they can be proposed by general assembly 30 

but is not exclusive of its power to call a constitutional con- 
vention 31 

difference between, and Art. I, Sec. 1 31 

construction placed upon, by advisory opmion 31, 32 

Article IV, Sec. 10, Constitution of Bkode Island reserves power of 

general assembly to call constitutional convention 4 

Bancroft on annals of Ehode Island 42 

on richness m origmal ideas of Ehode Island .53 

23 



Bill of Eights did not spring mto bemg at once 

not completed yet 24 

new clauses needed m, proposed 76, 77, 78, 79, 80, 81, 82, 83 

Bill to appoint a Board of Police and License Commissioners for the 

city of Providence 25, 56 

plea for necessity of 56 

imconstitutionality of 56 

claimed to be necessary 56 

Block Island, see Xew Shoreham. 

Bryce on annals of Rhode Island 42 

Bristol County 58 

By-laws, made by majority, can be repealed or amended by majority 15 
even though, provide for repeal or amendment only by more 

than majority vote 15 

California, powers of to^\Tis and cities of 67-68 

Cases cited — 

Smith V. Xelson, 18 Vt. 511 15 

Luther v. Borden, 7 How. 1 19 

Taylor v. Place, 4 R. I. 324 18, 21, 27 

Wilkuison v. Leland, 2 Peters, 627 19 

Bayard v. Smgleton, Martm Rep. 1 Div. 48 19 

Trevett v. Weeden, 1 Thayer Cases on Const. Law, 73 20, 21, 33 

People v. Albertson, 55 X. Y. 150 25 

State v. Moores, 76 X. W. Rep. 175 25 

Petition of Knowles for an opmion, 13 R. I. 9 27 

Allen V. Danielson, 15 R. I. 480 27 

State V. Cleveland, 58 Me. 573 27 

In re powers of Legislature, &c., 58 Me. 615 27 

In re power of removal, 72 Me. 562 28 

In re command of militia, 8 Mass. 549 28 

Martin v. Mott, 12 ^rheat. 19 28 

People v. Hardmg, 53 Mich. 485 32 

People V. Ilurlbut, 24 Mich. 44 33 

State V. Denney, 118 Ind. 449 25, 34, 56 

Penhallow v. Doane's Adr., 3 Dall. 54 43 



114 



PAGE_ 

Cases cited — 

Chisholm Excr. r. State of Georgia, 2 Dall. 419 43 

Commonwealth r. Plaisted, 148 Mass. 375 54 

Philadelphia i-. Fox, 64 Pemi. St. 169 56 

In re Constitutional Convention, 14 R. I. 654 . . .3, 4, 23, 24, 26, 27, 28, 

29, 30, 31 

Channing, his statement incorrect that toT\^is are not older than cen- 
tral governments ' 40 

Charter, of 1663 was superseded by aid of vote of proposed enlarged 

electorate, iq 1842 6 

of Providence, 1647 12, 13, 14, 35 

of Pocasset or Portsmouth, 1638 13 

second, of Portsmouth, 1639 13 

of Newport, 1639 13, 46, 46 

every, provided for government by majority 12, 13, 14, 15 

of 1643-4 14 

of 1663 14 

of Portsmouth and Xe\\T)ort united, 1640 and 1641 14, 38, 39 

acceptance of charter of 1643-4 was delayed until 1647 through 

dread of centralization of power 18 

petition of Providence for, 1647 35-36 

Warwick had no charter, 1647 35, 47 

presumed that Portsmouth and Xewport had 35 

Roger AVilliams sent to England in 1643 to procure 44 

his return with, 1644 45 

formation of united goverment thereunder 45-61 

of Providence, 1648 46-47 

of Providence as a city, 1832 47 

of Coddmgton, 1651, repealed, 1652-3 59 

every, of a to\A'n or city should be drawn and amended by 

citizens thereof 67-68-69 

provisions therefor 100-101-102 

Cities (see also to\Mis) m Rhode Island are to^^'lls differently organ- 
ized and at their own request 55 

in U. S. are the worse government of all civilized countries. . . 25 

cause thereof 25 

how corrected 25 

political control of cities claimed to be necessary, 56 

should have powers of local self-government 67-68-69 

Claims against the State, constitution should provide means for en- 
forcing 70, 83 

Clark, John, appomted agent of island to^^^ls to procure repeal of 

Coddington's charter 59 

Coddington, William, obtamed charter for himself over Rhode Island 

and Conanicut in 1647 59 

Commission to revise constitution, appointment of, authorized 2 

adopted new doctrme 17 



115 



PAGE. 

Commission submitted a revised constitution that failed to meet ap- 
proval of people 26 

reasons of such failure 26 

Compact of government, presumed that Portsmouth and Newport 
had. See charter. 

Constitution, Art. I, Sec. 1, of 1 

the power that makes, can alter or destroy it 1 

rule for construmg powers conferred m 1 

new, required 2 

necessity for new, admitted 2 

by action of general assembly in 1883 2 

by authorizing appointment of commissioners 2 

by consensus of public opinion 2-22 

by resolution of Jan. 27, 1897 2-22 

right to make, etc., cannot be limited by implication 2-3 

of 1842 the work of majority 4-6 

power of majority to make and alter, not limited 5 

except that it be explicit, etc., act, etc 5 

a new, is operative upon acceptance by majority of electors. . 6 

includmg those who will become electors under its terms 7 

this was done in 1842 20 

of Delaware and Maryland changed m different manner from 

that provided 8 

defence of that course 8-9 

right of majority to make and alter, cannot be defeated or 

abrogated 4-5-8 

provision m, limitmg power of majority void 9 

is too sacred to be so framed that power to make and alter it 

can be juggled with 11 

proposed to be amendable by majority, if amendment proposed 
by general assembly, but not, if proposed by a constitu- 
tional convention, mider revised constitution. 10, 17, 18 

people could alter it as they pleased, before 1842 19 

of 1842 was m accordance with demands of Dorr 20 

any new, must limit excessive powers of general assembly. ... 21 
this can be done only through a constitutional convention — 21-24 
whenever a general revision of, is needed, a constitutional con- 
vention is indispensably necessary 22 

requires new provisions agamst new dangers 22 

advisory opinion erred in saymg a new, would be such in name 

only 23 

new, framed by a constitutional convention should be sub- 
mitted to electors, mcludmg those to become qualified un- 
der it 26 

expressly stated right to make and alter, restricted by implied 

construction, quasi judicial only, m advisory opmion 30 



116 



Constitution, no construction of, is herein proposed that is unconsti- 
tutional, but one that will give effect to the whole 30 

frammg new, is not amending the old one, and illustration 31 

real meaning of, requires knowledge of unwritten, as well as 

of written 32 

no, is wholly written 32 

no, is wholly unwritten 33 

of Rhode Island was unwritten from 1776 to 1842 33 

written, does not contain all of 34 

written, grants no rights to people 34 

written, is a limitation of powers of government in hands of 

agent 34 

should expressly state right of towns and cities to local self- 
government 39 

powers of towns and cities under unwritten 42 

requisites and fundamentals of a new 66 

legistation in, to be avoided 66 

new, should recognize town and city powers 67, 78, 100-101-102 

should provide for taxation of all property 70, 81, 89 

unless exempt under constitution of United States 70 

should give mcreased protection to witnesses in criminal 

cases 70, 81 

should provide for enforcement of claims agamst the State ... 70, 83 

and against extra pay to public officers 70, 83 

and for reference of all contested election cases to the courts. 72, 97 

and that all State officers shall be paid by the State 72, 89 

basis of constitution of senate and house, hi new 72, 90 

new, should provide for creation of all corporations only by 

general law 72, 87, 102-103-104-105 

for veto power by governor 73, 91-92 

new means for securing the best judiciary 73, 94-95 

for publicity in all matter of public concern 73-74-75, 98-99 

new safeguards agamst monopolies. . .74, 80-81, 83, 87, 89, 102, 104-105 
that people can always make and alter their constitution of 

government 75, 77-78 

that both people and general assembly can propose amend- 
ments : 75, 106 

draft of new, submitted 77 to 108 

Constitutional Convention, when, should be called 2, 7, 22, 106-107 

has been frequently called and may still be called by general 

assembly ■ 2, 3, 107 

necessity for, recognized 2, 7, 29 

power to call,' is in general assembly under Art. I, Sec. 1 2, 5, 7 

this power to call, taken for granted by framers of constitu- 
tion 4, 8 

through, alone can defects in present constitution be remedied 21 
necessary, when constitution needs general revision 22 



117 



PAGE. 

Con.-ititutional Convention, or new safeguards against new clangers. . 22-23 

public opinion calls for 2, 22 

necessity for, recognized 2, 22 

to restrict powers of general assembly 24, 26 

and to enlarge powers of executive and judiciary 24 

no, can be called, according to advisory opinion 26 

legislative construction put on power to call, by general as- 
sembly 30 

the question is political rather than legal 30 

what powers a, should have — 106, 100 

ConMruction, of sovereign rights 2 

not to be limited by implication 3 

to be favored that will give effect to whole of constitution 3, 32 

to be favored that will give effect to both Art. I, Sec. 1, and 

Art. XIII 29 

put by general assembly on Art. I, Sec. 1 30 

put by advisory opinion thereon and on Art. XIII 24, 30, 31, 32 

Contested elections should be decided by the judiciary T2, 91 

Corporations should be formed only under general laws. . .72, 100, 101, 102, 

103, 104, 105 

County, its msignificance in Rhode Island 57, 58 

first division into counties in Rhode Island 57 

Rhode Island, now ]S[ewport, and Providence, created, 1703. .. 57 

Washington, created, 1729 57 

Bristol, created, 1747 57 

Kent, created, 1750 57 

in Rhode Island is not a corporation 57, 58 

in. Rhode Island cannot sue or be sued 58 

Declaration of Rights, see Bill of Mights. 

Belaioare, changed its constitution in different manner from that 

provided therein 8 

defence thereof 8 

Dorr, Thomas, the fundamental principles he contended for, were 

right 12 

his error was in appealmg to arms 12, 19 

enlightened public opmion compelled acceptance of his prin- 
ciples 12 

that constitution was unwritten, important m bearing on Dorr 

war 19 

party voted on constitution of 1842 and secured its adoption, 

it granting Dorr's demands 19, 20 

fame of, not adequately acknowledged 20 

political mistake made m not grantmg his demands sooner 20 

Draft of new constitution submitted 77 to 108 

East Greenwich, account of 49 

admitted in 1677 50 



118 



PAGE. 

Electorate, if to be enlarged, those to be admitted should vote on 

question of its enlargement 6, 7, 26, 107, 109 

or its enlargement cannot be secured 6 

this course was pursued in 1842 6, 26 

Executive, in Rhode Island and Connecticut not crown officer 20 

hence the revolution caused no breach m 20 

powers should be increased m a new constitution 24, 91, 92 

should have veto power 73, 91 

Ex-post facto legislation, civil as well as crimmal, should be for- 
bidden 69 

Expressio unius est exclusio alterius 29 

critised 29 

proper application of this maxim 30, 31 

misapplication of 31 

has no real application to Art. I, Sec. 1 and Art XIII, because 

the expressio unius is not the same in the two articles 31-32 

General assembly has power to carry into effect the provisions of the 

constitution 1 

this includes power to call a constitutional convention, when.. 2 

revision of constitution is necessary, resolution of, that such 

revision is necessary 2, 22 

has frequently called constitutional conventions 3 

and still has power to do so 4, 7 

power of, under Art. XIII is extraneous and in addition to ex- 
pressly revised right of people mider Art. I, Sec. 1 5 

understanding of framers of constitution of power of, to call 

constitutional convention 8 

will of, put above will of people by revised constitution 10 

power of, to propose amendments can be limited 11 

has always exercised great power 18, 21 

exercised judicial as well as legislative powers, under charter. 18 
continued to exercise judicial power after 1842, mitil decision 

ui Taylor v. Place 18, 31 

powers of, were increased by mdependence 20 

the too great power of, was, and is, the weak pomt in the 

government of Rhode Island 21 

and needs restriction by a new constitution 24 

power of, to appomt certain officers m towns and cities, denied 25 
revised constitution failed to put necessary restrictions on 

powers of general assembly 26 

revised constitution could not have been adopted by people 

without approval of 26 

act of, contrary to an advisory opinion never yet held to be un- 
constitutional 28 

duty of, to call a constitutional convention 29 

resolution of, of January 27, 1897 22, 29 



119 



PAGE. 

General assembly should resubmit question of power to call conven- 
tion to supreme court, if unwilling to call one 29 

or propose amendment to constitution under which a conven- 
tion can be called 29 

power of, to call convention restricted by quasi- judicial con- 
struction of Art. XIII as it is claimed 30 

the expressly mentioned way in which, can propose amend- 
ments to constitution is exclusive of any other way it can 

do so 30 

limitation of power of, over towns and cities should be ex- 
pressly stated ui constitution 39 

records of proceedings of first 40-45 

was then what the name means 45 

accepted first charter in 1647 45 

has moulded, enlarged, and explained town and city powers, 

but it has not created them 46 

did not create nor incorporate the city of Providence 47 

has power to mould and direct power of towns to local self- 
government, etc 55 

this power has been exercised upon request of the towns 55 

two rival general assemblies in session at same time in 1653. . . 59 

met m ^N'ewport until 1760 to elect new members 62 

was subject to referendum and mitiative of towns, 1647 to 1654, 60 to 65 

relation of powers of, to those of towns 65 

violation of rights of towns by measures of 60 

should have no control over town and city charters.. 67, 68, 69, 100 

101, 102 

should be prohibited from giving extra pay to State ofiicers 70 

should be inhibited from "grab acts," "back pay acts," and 

"May deals" 72-86 

power of, to grant monopolies should be restricted, 72, 80, 81, 83, 87, 

89, 102, 104, 105 

when, should be bicameral 72, 73 

should have power to propose amendments m constitution to 

people 75, 106 

Glocester created a town, 1730 51 

Government, right of people to make and alter constitution of 1 

by a majority 4, 5 

this right expressly reserved. Art. I, Sec. 1, constitution of 

Rhode Island 1 

is unqualified and absolute 1 

exists, even if not stated in constitution 1 

cannot be abrogated 1 

is not limited by implication, by giving power to one branch 

of the government to propose amendments 5 

republican form of, is one in which the majority governs 7, 12 

this is denied if minority can defeat will of majority 7, 12 



120 



PAGE. 

Government, iii which case the, is oligarchic, and is not a republican 

form of 12 

our forefathers intended ours should be a, by the majority 12 

compacts of, m Rhode Island provided for government by 

majority 13, 14, 15 

no State has ordamed that majority shall not make and alter 

their constitution of 16 

under revised constitution, the constitution of, would be amend- 
able by majority only if proposal came from general assem- 
bly 10-17 

and a constitutional convention could not submit a new consti- 
tution of, to the people for acceptance by a majority 10, 17 

weak pomt m, of Rhode Island, is too great power of general 

assembly 21 

Habeas corpus (39 

House of Bepresentatives, representation in, should be based on pop- 
ulation 73, 90 

Hoidand, John, letter from 52 

Initiative, see also referendimi, introduced m Rhode Island m 1647.. . 60 

accoimt of, in Rhode Island 61, 62, 63 

decline of, after 1664 64, 65 

Jamestown, admitted in 1678 51 

peculiarities of its local self-government 51 

still m force 51 

Judicial power, exercised by general assembly mider charters of 1643- 

1644 and 1663 18 

put an end to by decision m Taylor v. Place, 4 R. I. 324 18, 21 

to declare law vmconstitutional, first exercised ia Trevett v. 

Weeden 20 

should be increased by a new constitution 24 

exercised by original to^^^ls or colonies 36, 37 

by self-mstituted judicial power 37, 38 

Judiciary, constitutional provisions necessary for securing the best. .73, 93, 

94, 95 

King's Towne (Kmgston), account of , 50 

admitted in 1674 50 

Kent County, created, 1750 57 

Liberty of Conscience 40 

Limitation, a self-imposed, may be set aside by the same power that 

set it up 15 

if imposed by a higher power, only that power can set it aside. 15 

a sovereign power can impose, on itself 15 

but it can set aside such a, at any time 15 

on power of general assembly is not a, on power of people 29 

on power of one party to do one thing in-one way is not an im- 
plied, on power of another party to do another thing m 
another way (as held by the advisory opmion) 30, 31 



121 



PAGE. 

Local self-government, right to, not lost, because not expressly stated 

in constitution 34 

it should now be expressly stated 39, 69, 78, 80, 100, 101, 102 

right to, in E. 1 52 

is vested in the new as well as in the origuial towns 53 

causes of loss of knowledge of this right 54 

it was formerly exercised in towns, &c., in England 56 

but knowledge thereof was lost there also 57 

Madison, James, stated that States are not sovereign 43 

Majority, may make and alter constitution 3, 4 

made constitution of 1842 4, 5, 6 

now, has same power 4, 5 

that makes, can destroy 5, 6 

power of, not limited by Art. I, Sec. 1, of constitution 5 

acceptance by, of constitution makes it the law of the land. . . 6 

political power is vested in physical 6 

physical, governs through ballots of numerical majority 6 

right of, to rule cannot be abrogated 6, 7, 8, 11, 17 

assertion of this right is not revolutionary 17 

rule through expression of its will at ballot-box 6 

denial thereof is revolutionary 17 

if majority of electors accept a new constitution, it becomes 

the law of the land 7 

right of, to make and alter constitution of government cannot 

be defeated or abrogated by any self-imposed limitation. . . 7 

may change constitution as they please 8 

power of, to make and alter constitution cannot be abrogated 

by a constitutional mhibition 9 

cannot abrogate power of future 9 

a mistake to undertake to prevent, from makmg and altering 

constitution 9 

cannot prevent future, from exercising same power of making 

and altermg constitution 9 

at one time has no more power than, at another time 9 

unwise to provide that a, cannot amend or revise constitution. 10 

necessity for, rule 11 

rule is fundamental principle of all Anglo-Saxon rule 11 

vote of, amending or revising constitution is an explicit and 

authentic act of the whole people 11 

restriction on power of, to make and alter constitution is de- 
fended, as necessary to prevent hasty action 11 

but this implies want of faith m 11 

faith in government by, is necessary if we are to have faith in 

American system of government 11, 12 

rules in England, without safeguards of written constitution.. 12 

principle that, rule should be adopted and followed 12 

lack of faith m this principle m Rhode Island 12 

16 



122 



PAGE. 

Majority, to deny this principle, is to substitute an oligarchical form 

of government 12 

a republican form of government is one in which, rules 12 

mtention of our forefathers was that the, should rule, as evi- 
denced in the compacts of government and charters, 12, 13, 14, 

15, 39 
the same, that makes by-laws for a corporation can repeal or 

alter them 9, 15 

a rule, by-law or constitution set up by a, can be set aside by a. 16 
can make and alter their constitution in every State except 

Rhode Island 16 

a, of three-fifths cannot be exacted 17 

could make the constitution in 1842 what they pleased, it being 

unwritten 19 

can place any limitations in constitution on power of general 

assembly 22 

that, should govern was expressly stated in the union of the 

island towns m 1641 39 

Maryland changed its constitution m different way from that pro- 
vided in its constitution 8 

defence thereof 9 

Massachusetts claim over Warwick 45 

claim over Westerly 47, 48 

has lost right to local self-government 54 

Maxim, see expressio unius est exdusio alterius. 

Milton, John, his free commonwealth 41 

his intercourse with Roger Williams 41 

Minority, if a, can prevent change m constitution, it is not a repub- 
lican form of government 12 

doctrine that, can defeat will of majority is without founda- 
tion or support in history of this State 15 

cannot prevent majority from re-asserting its power. Smith v. 

Xelson, 15 Vt. 551 15 

Missouri, power of towns and cities, under constitution of 67, 68 

Monopolies, to what extent to be granted 72 

prohibition of, how evaded 74 

necessity for new safeguards against 74 

provisions agamst 80, 81, 83, 87, 89, 102, 104, 105 

Newport, first compact of government 13 

compact of government of Portsmouth and, united 14, 39 

an origmal colony 18 

first settled m 1638 • 34 

presumably had charter from first general assembly, in 1647. . . 35 

exercised judicial powers before any charter was granted 36-37 

united with Providence, Portsmouth, and Warwick mider 

charter of 1643-4 45 

county created, 1703 57 



123 



PAGE. 

J^ew Shorehmn, or Block Island, account of 49 

admitted and incorporated, 1672 49 

peculiarities of its local self-government 50 

still in force 50 

Oath of office, peculiar form of 44 

form proposed 98 

People, right of, to make and alter constitution, expressly reserved, 

Art. I, Sec. 1 1 

this right can be exercised by majority 4, 5, 11 

as was the case m 1842, it is not limited by Art. XIII 4, 5, 7 

it is not stated how it is to be carried into effect 1, 7 

the general assembly can therefore call a constitutional con- 
vention 7 

this right of the, cannot be abrogated, even by a constitutional 

mhibition 7, 9, 11 

by the revised constitution, the will of the, was made sub- 

ordmate to that of the general assembly 10, 17 

a majority of the, could be made requisite, in order to make 

and alter constitution 11 

but no State has yet so ordained 11 

attempt made to limit this right of, to its exercise by a majority 

of three-fifths 17, 18 

could more easily make and alter constitution in 1842, as it 

was unwritten 19 

only through exercise of this power of, through a constitutional 
convention, can the too great powers of the general as- 
sembly be limited 22 

this right of the, is political rather than legal 30 

it was held by the advisory opmion to be impliedly limited, 
because of grant to general assembly of power to propose 

amendments 30 

all political power is m, unless otherwise granted in constitu- 
tion 34 

of United States, the only sovereign 42, 43, 44 

should always have power to make and alter constitution 75 

that power is absolute 75 

and limitation thereof is futile 75 

provisions to carry these prmciples into effect 77, 78, 106, 107 

Pocasset, see Portsmouth. 

Political systems, basis of our, is right of people to make and alter 

their constitutions of government 1, 77 

provisions for carrymg this right mto effect 77, 78, 106, 107 

Portsmouth, first compact of government 13 

second one 13 

compact of union, and Newport 13, 14, 39 

one of the origmal colonies 18, 34 

settled in 1637 34 



124 



PAGE. 

Portsmouth, originally named Pocasset 34 

united with Providence, Newport, and Warwick under charter 

of 1643-4 45 

presumably had charter granted about 1648 47 

Power, of general assembly to call constitutional convention when 

necessity arises for general revision 2 

this, exercised m 1824, 1834, 1841, 1842 3 

political power rests in majority 6 

to make and alter constitution is in majority 8 

and cannot be abrogated 8 

this, remains in people, unless expressly delegated in constitu- 
tion to one of the three branches of government 34 

it is not vested in any of these three branches unless expressly 

conferred in constitution 34 

Privacy, right to, should be guaranteed in constitution 69, 79 

Prolate, power of towns over, matters 58 

Providence, one of the original colonies 18 

settled, 1636 34 

compacts of government of 12, 13, 14, 34, 35, 36 

union with Portsmouth, ]N^ewport, and Warwick, 1647, under 

charter of 1643-4 . . .'. 35, 36, 45 

petitioned for charter, 1647 35, 36 

exercised judicial powers before any charter was granted 36 

incorporated as a town, 1648 46, 47 

act of 1813 to enlarge and explam powers of town of 47 

created a city, 1832 47 

was not incorporated as a city, but contmued a body politic 

with changed powers 47 

divided into three towns 50 

letter to, from Sir Henry Vane 60 

claim that, being democratic, must be kept under control of 

republican general assembly 56 

new charter for, should be voted on by its own citizens, and 

general assembly should not change it at its will 68, 69 

as provided in draft of constitution 100, 101 

Puhlicity, necessary, m all matters of public concern 73, 74, 75 

provisions to secure such 98, 99 

Public offi,ces should not be distributed among members of general 

assembly 72 

provision against it 98 

Beferendum and initiative, introduced in Khode Island in 1047 60 

accomit of 61, 62, 63, 64 

decline of, after 1664 64, 65 

Besolution of the general assemUy, passed January 27, 1897, recog- 
nized necessity of general revision of constitution 22, 29 

Pevised constitution, was really a new constitution 10 



125 



PAGE. 

Eevised constitution, reversed distinction made between Art. I, Sec. 

1, and Art. XIII of present constitution 10, 17-18 

putting will of general assembly above will of people, and lim- 
iting right of people to make and alter constitution, failed 

to limit powers of general assembly 18 

reasons why, was acceptable to people S6 

Bliode Island declared its independence May 4, 1776 18 

constitution of, was therefore unwritten from May 4, 1776, to 

adoption of constitution, i^ovember 5, 1842 18-19 

this made it easier for judiciary in, to declare an act uncon- 
stitutional 20 

name of 40 

formed by union of four original colonies 40, 61 

Scituate, created a town, 1730 51 

Seal, see State seal. 

Senate, every town and city should be equally represented in 73, 90 

Smithfield, created a town, 1730 51 

Sovereign, a, power cannot limit itself permanently 7 

such self-imposed limitations can be set aside by same power 

that set them up 7, 15-16 

instances cited 8-9, 15-16 

the colony and State never were 41 

the original colonies of Rhode Island, and two of them as a 

union, have been 41 

the States are not, except in limited sense 42-43-44 

towns are, m same sense 44 

people of United States the only true 42 

in what sense State and towns are 42, 44 

Sovereignty, is in the majority 6 

attributes of 6 

defined 6 

is in people and is malienable 7 

use of seal by State is one of the msignia of 39-40 

State, the word first used in Rhode Island upon union of Portsmouth 

and :N'ewport, 1640 39 

seal adopted by this union 39 

not sovereign, m true sense 42 

never was 43 

never was severally independent 1 43 

has limited sovereign powers only 44 

has not had continuous existence 57 

claims against, should be collectable 70 

provision to accomplish this result 83 

should be divided into districts for election of members of 

house of representatives 73 

provision therefor 90 

Suffrage, qualifications should be simple 70 



126 



PAGE. 

Suffrage, property qualification has failed iii its object and should be 

abolished 71 

extension of, to women should be provided for 71 

provisions to accomplish these objects 84-85 

Tax, the assessments and. collection of taxes is left to each town and 

city m Khode Island 39 

Taxation, no property should be exempt from 81 

provisions to accomplish this end 89 

Towns, (see also cities) right of, to local self-government 25 

claim that they have no such right 25 

this is denied in cases cited 25 

denial of this right a fertile source of loss of civic pride and 

of political decadence of American cities 25 

this right should be expressly stated in the constitution — 25, 39, 78 
it is not dependent however upon being so expressly stated, 32, 33, 34 

for it is part of the unwritten constitution 34 

compacts of government or charters of 13, 35, 37, 38 

the four original, of Ehode -Island were separate colonies 34 

they made the colony by theii union 34, 45 

the original, and how constituted 35 

they derived no powers from crown nor parliament 36 

self-mstituted judicial powers of 36, 37, 38 

upon union, each town reserved control over its own affairs. . . 39 

every town (and city) in Rhode Island still has this right 39 

union of, of Portsmouth and ^N'ewport, 1640, created the united 

colony or State 38, 39, 40 

statement of form of government of this union 39, 40 

the original, and this union were sovereign, although the united 

colony and State never were 40, 41 

were possessors of colony 40 

have this right of control each over its own local affairs, under 

unwritten constitution 42 

of Rhode Island are sovereign, within certain limits 43, 44 

all, admitted stand on same footmg as the original, 46, 47, 48, 49, 50, 51 

admitted to union, Portsmouth and Newport, 1640 13, 14, 39 

Providence, Portsmouth, ^N'ewport, and Warwick, 1647 35, 45, 46 

Westerly, 1669 48 

^N'ew Shoreham (Block Island), 1672 49 

Kmgston, 1674 50 

East Greenwich, 1677 51 

Jamesto^^^Q, 1678 ' 51 

Smithfield, 1730 51 

Scituate, 1730 51 

Glocester, 1730 51 

original, and those after admitted or created, all had control 

over their own local affairs 34, 50, 51, 52 

they still have this power 42, 52, 53, 54 



127 



PAGE. 

Toivns, etc., contiiiued. 

analogy of this system with that of States forming United 

States 52, 53 

pecnliar powers of several Rhode Island 50, 51 

power of, to local self-government is lost in Massachusetts. ... 54 

causes of loss of knowledge of this power 54 

this power may be moulded and directed by the general assem- 
bly upon request of 55 

in Rhode Island are the recognized units of its political system 55 

becommg cities in R. I. retam same right 55 

supremacy of, in Rhode Island further shown 56, 57, 58 

ancient powers and rights of towns in England, forgotten 56 

power of, over probate matters 58 

life of, has been contmuous ...» 59 

reunion of, after repeal of Coddmgton's charter 59 

kept alive the government during Coddington's usurpation 

and contmuance of rival general assemblies 60 

power of, through the referendum and initiative from 1647 to 

1664 60, 61, 62, 63, 64, 65 

statement of powers of 65 

these powers were forgotten when Hopkins wrote 65 

these rights violated by acts of general assembly 66 

to remedy this, express recognition of them must be put into 

constitution 66, 69, 78 

recognition of this necessity m constitutions of Missouri, Cali- 
fornia, and Washington 67, 68 

should be divided into districts for representation in house of 

representatives accordmg to population 73, 90 

Union, of Pocasset or Portsmouth, and Newport, 1640 14, 38, 39 

mider charter of 1643-4 in 1647 45, 61 

leading characteristic of American 38 

form of government of, first, stated, 1641 39 

this, called a "State " then 39 

powers of this 39 

significance thereof 40 

of origmal colonies formed the united colony, aftewards the 

State 40 

of towns, after repeal of Coddington's charter 59 

Vane, Sir Henry, his letter to Providence 60 

his intimacy with Roger Williams 60 

Veto, power of, should be conferred on governor 73,91, 92 

Warwick, an original colony 18 

settled in 1642-3 18 

admitted under charter, 1647 18, 35, 46 

had no compact of government 35 

not named in charter of 1643-4 35 



128 



PAGE. 

Warwich, its growth hindered by dissensions among its founders and 

claim of jurisdiction by Massachusetts 45, 46 

presumably had charter granted, 1647 or 1648 46 47 

Washington comity, created, 1729 57 

power of towns under constitution of State of 68 

Westerly, account of 46, 47 

created a town and admitted 47 

claimed by Massachusetts 47, 48 

Williams, Boger, his hitercourse with Milton 41, 42 

sent to England, 1643, to procure charter 44, 45 

his return with charter, 1644 45 

appouited agent of Providence and Warwick to procure repeal 

of Coddington's charter 59 

his intimacy with Vane 59 

Witnesses, m criminal cases, should be further protected 70, 81 






CONSTITUTION-MAKfNG 

IN RHODE ISLAND 



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